With Decree Law No 183 of 8 November 2021, Italy adopted new legislation on the use of digital tools and processes in company law, in implementation of EU Directive 2019/1151.
In order to reach the goal of creating a “single and competitive” internal market through procedures aimed at allowing the entire process of setting up certain types of companies to be done online, the Directive introduces the general principle of digitalisation of company law (incorporation and registration of companies, interconnection of Member States’ business registers).
The Directive, on the one hand, leaves Member States free to decide whether to opt for authentic deeds, according to their own legal traditions, while on the other hand setting specific obligations with which the platforms must comply, as well as time limits for the procedure.
The new Italian rules implementing the Directive provide that the companies subject to the new discipline (SRL and SRLS – LLC and simplified LLC), with capital paid up in cash, may be set up online, with a public deed formed through the use of a platform that allows videoconferencing (since audioconferencing alone is insufficient) and the deed signed with a recognised electronic signature.
The online setting up of the SRL must take place through the use of an electronic platform organised and managed by the National Council of Notaries, by public electronic document, with all the requesting parties, or some of them, participating by videoconference.
The provisions of the Italian notarial law relating to public deeds drawn up with IT procedures and their signing must be applied, as well as the rules on the execution of contributions by bank transfer made to the notaries’ dedicated account.
Specific provisions are dedicated to the platform of the National Council of Notaries, which must be used to verify the identity of the parties, the validity of their digital signatures, the perception of the parties’ will and agreements expressed by videoconference, their continuous connection and the display of the deed to be signed.
The notary may interrupt the signing of the deed via videoconference and request the physical presence of the parties, or some of them, if there is any doubt about the identity of the applicant or should any non-compliance with the rules on the capacity to act or to represent a company be detected.
The whole procedure must take place within 10 days, reduced by half if standard statute models are used. In this case, a maximum limit is set on the remuneration for notarial activity.
The provisions of the Italian notarial law relating to territorial competence are not waived: the notary may receive the deed if the residence/registered office of at least one of the parties (the shareholders) is located in the notary’s district or if all the parties are foreigners.
Author: Insignum International Office, Milan