Establishment of branches and incorporation of limited liability companies via full audio/video conference
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The Decree allows an Italian Notary Public to file the corporate paperwork necessary for the establishment of an Italian branch of an EU company and for the appointment of branch managers by way of a “digital notarial deed” (i.e. subscribed digitally) in full video/audio conference, in compliance with the EU Directive 2019/1151.
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Moreover, an Italian limited liability company can also be incorporated within a full video/audio conference in which all or some of the future shareholders of such company participate. This procedure will be available provided:
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the company's registered office is to be established in Italy;
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the contributions are made in cash only (i.e. not by way of contribution in kind), and
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the contributions are paid by bank transfer to the Notary's dedicated account.
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In both cases above, no physical presence of the parties will be required – which represents a revolution of previous practice.
The Decree came into effect on December 14, 2021.
Full audio/video conferences for Shareholders’ meetings
In keeping with the theme of the digitalisation of Italian company law, the Notarial Council of Milan also recently approved a new recommendation (no. 200/2021) which allows Italian companies to hold shareholders’ general meetings exclusively through a full audio/video conference, without the meeting even having been convened to be held in a physical location.
This recommendation, interpreting provisions regarding shareholders’ meetings, envisages the possibility of holding shareholders’ meetings (and Board of Directors’ meetings) via full video/audio conference only (i.e. without indicating a physical location for the meeting in the notice of call). This interpretation is quite innovative: the former regime – adopted also in the context of COVID 19 emergency – required that at least the secretary of the meeting be in attendance in the physical location indicated in the notice of call, which was considered as the place where the meeting was held.
Under this new interpretation, the notice of call must contain the credentials for the access to the virtual platform where the meeting will be held. Nevertheless, to take advantage of this possibility a company’s by-laws must allow shareholders’ meetings to be held via full video/audio conference.
Next steps
The phenomenon of the digitalisation of companies and, more generally, the digitalisation of Italian company law, has taken a considerable step forward with this Decree. Nevertheless, in order to benefit from the new procedures contained in the Decree, the issuance of further technical regulations by the Italian Government is needed, that must be adopted by 13 December 2022. In addition, despite the fact that the opinion of the Notarial Board of Milan is particularly influential, the market expects further opinions by scholars and the Italian Notarial Council to be forthcoming as confirmation of the new approach, as part of the modernisation of the Italian legal framework.
We remain available for any clarifications you may need on the above.
Authored by Leah Dunlop, Elisabetta Randazzo, Pierluigi Feliciani, Niccolò Lavorano, and Valerio Navarra.
