9/13/2021

A limited liability company can be incorporated from a home PC
Angelo Busani

 

The possibility of setting up a limited liability company via the web, i.e. without physically going to the notary, is now on the way. In fact, at the Council of Ministers meeting held on 5 August, the Government gave its preliminary approval to the draft legislative decree which, in implementation of EU Directive 2017/1132 and delegated law 53/2021 (the European delegation law), will make it possible to sign the deed of incorporation of the Srl in digital form, while sitting comfortably in one's own living room or office and even outside the national territory. The draft decree - filed in Parliament under number 290 - is now being examined by the parliamentary committees for their opinions, which will probably be given by both the House and the Senate this week. It will then return to Palazzo Chigi for final approval.

The notarial platform - The public deed requires, because of its own nature, the physical presence of the notary and of the contracting parties, in order to identify them, receive their will and sign it, as well as for the purposes of the checks to be carried out in accordance with anti-money laundering legislation. It was therefore necessary to develop a suitable technical tool to allow the expression of the will to set up the company to be translated into notarial form by videoconference. The legislator has therefore established that the "umbilical cord" between the notary and the participant in the video link is achieved, instead of the physical co-presence, by means of the drafting of a digital public deed using, at no cost to the public finance, a "telematic platform prepared and managed by the National Council of Notaries" (already implemented today and which notaries are already able to use), which has been structured in such a way as to allow the verification of the identity of the video-participants, the verification of the signature certificates and the perception of what happens to the parties connected by videoconference at the time they express their will. The platform also ensures a continuous connection with the participants by videoconference, the display of the deed to be signed and the affixing of the electronic signature (digital signature or qualified electronic signature) by all signatories. It also enables persons who do not have a digital signature to be issued with a suitable electronic signature when signing the public digital document.

 

Online incorporated companies - It will not be possible to set up any type of company online, but only the “ordinary” limited liability company (with any share capital and, therefore, also in the form of reduced capital, i.e. between euro 1 and euro 9,999) and the “simplified” limited liability company, i.e. the limited liability company without bylaws and with standard memorandum of association. A public deed procedure formed “in physical presence” (i.e. on paper or digital support, with an analogue or digital signature to be affixed in person) will therefore continue to be required for the incorporation of partnerships and joint stock companies. However, the online incorporation of the Srl does not allow contributions other than in cash (and, therefore, it will not be possible to use the digital memorandum of association if contributions in kind are made); and, in this regard, the money needed to release the subscription of the initial capital must be paid, prior to the signing of the deed of incorporation, to the notary, who will keep it in his “dedicated bank account” (established pursuant to Article 1, paragraph 63, of Law 147 /2013) and will then transfer it to the newly incorporated company as soon as it is registered in the Companies’ Register.

The competent notary - If all the shareholders are resident outside Italy, any Italian notary may be requested to receive the public deed establishing the new company. If, on the other hand, some of the shareholders reside or have their registered office in Italy, only a notary established in the territory in which one of the shareholders resides or has its registered office may be instructed to execute the deed (the notary's territorial jurisdiction is limited to the region in which the municipality in which the notary has his registered office is located or to the district of the Court of Appeal, if it is located in several regions). It will also be possible for the incorporation of the limited liability company to take place with the shareholders partly present in the notary’s office and partly by videoconference; in this case too, the public deed will be drawn up in digital form, because those participating in person will also sign (together with the notary) the file of the memorandum of association by means of electronic signature.

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