The innovations introduced by Legislative Decree No. 183/2021. Contribution by Avv. Niccolò Medica published on N&T Plus Diritto – Il Sole 24ORE.
On 14 December 2021, Legislative Decree No. 183 of 8 November 2021 shall enter into force, concerning the use of digital tools and processes in corporate law.
The decree, which transposes Directive (EU) 2019/1151, amending Directive (EU) 2017/1132, provides that limited liability companies, including in simplified form, may be incorporated by means of a notarial deed executed remotely, via videoconference, and in electronic format, provided that (i) the registered office of the company is in Italy and (ii) contributions are made exclusively in cash.
The articles of association may be drafted directly by the notary, also with the assistance of other professionals, such as lawyers and accountants, or by using uniform models that shall be adopted, by decree of the Ministry of Economic Development, within sixty days from the entry into force of the legislative decree in question. In the latter case, the fee for notarial services shall be reduced by half.
During the execution phase of the articles of association, the telematic platform prepared and managed by the National Council of Notaries shall enable the verification of the identity of the participants, the verification of the application of the digital signature by those entitled to do so, the verification and certification of the validity of the signature certificates used, as well as the verification of what occurs at the moment when the parties connected via videoconference are called upon to express their will. The platform shall also allow the issuance, for the purposes of signing the deed, of an electronic signature to parties who do not possess one.
The platform shall also ensure continuous videoconference connection with the parties, as well as the correct display of the deed to be signed and the application of the electronic signature by all signatories.
It is nonetheless provided that the notary executing the deed, within the scope of the control activity inherent to his functions, may interrupt the videoconference execution of the articles of association and request the physical presence of the parties or some of them should he have doubts regarding the identity of the applicants or should he find non-compliance with the provisions relating to legal capacity or the capacity to represent a company.
Once the articles of association have been executed, the notary shall proceed, in accordance with the provisions of the Civil Code, to register the same in the business register.
The decree further provides that the deeds and data concerning capital companies in general – and therefore also companies incorporated by means of digital tools and processes – shall be preserved in the business register in digitalized form.
