On 29th November, Legislative Decree No. 183 dated 8th November 2021 was published on the Italian laws’ Official Journal to enact the EU Directive 2019/1151 dated 20th June 2019, which amended Directive (EU) 2017/1132, and introduced important innovation to the digitalisation and use of digital tools in corporate law sphere.
As anticipated in our last news dated 15 November, the mentioned Decree establishes the possibility to incorporate by means of telematic tools all the limited liability and simplified limited liability companies having their registered offices in Italy and a capital share paid up by means of contributions in cash. However, the Decree provides that such telematic processes shall need in any case the assistance of a Public Notary, receiving the deed of incorporation by means of a digital platform managed by the Council of Notaries and in the presence of the requesting parties (or some of them), also in videoconference.
The Decree definitively stops the long debate which affected the digitalisation of the innovative start-ups’ incorporation, which began in May 2016 with the claim of the National Council of Notaries to the Administrative Court of Lazio concerning the overruling of the Ministry of Economic Development’s decree allowing the incorporation of such companies without a notary’s deed and ended with the Council of State’s judgement declaring null and void the provision for the online incorporation of innovative start-ups envisaged in the said MISE’s decree.
The Decree also amends certain provisions of the Italian Civil Code, by introducing under Article 2383, paragraph 1, the obligation for directors to submit, prior to their appointment, a declaration on the non-existence of causes of their ineligibility (disqualification, incapacitation or being condemned of disqualification, even temporary, from public offices), as well as causes of disqualification from the office of director adopted against them by the competent bodies in a Member State of the European Union. Furthermore, the Decree introduced Article 2508 bis in the Italian Civil Code, which regulates the telematic requirements for the registration and cancellation of secondary branches subject to the law of an EU Member State.
The Decree will enter into force on 14th December 2021.