ITALY Law and Practice Contributed by: Francesco Di Carlo and Filippo Raynaud, FIVERS Studio Legale e Tributario
5.3 Incorporation and Registration SPAs and SRLs are incorporated and registered with the competent Companies’ Registry, which is man - aged by the local Chamber of Commerce. The incorporation of an SPA and an SRL requires a notarial deed in front of a notary (even through a videoconference, with respect to an SRL and subject to specific restrictions) and the filing of the relevant incorporation deed and of the by-laws attached there - to with the Companies’ Registry. Italian companies are required to file a long list of doc - uments and information with the Companies Registry, which are then publicly available. These documents and information include (without limitation): • deed of incorporation, by-laws and any amend - ments thereof; • appointment, cessation, revocation, of directors and members of the board of statutory auditors; • transfer of the corporate seat; • grant or revocation of powers of attorney; • minutes of shareholder meetings approving extraordinary transactions and approving the annual financial statements; • annual financial statements and consolidated financial statements; • the fact that the company has (or ceased to have) a sole participant; • the fact that the company is subject to the direc - tion and coordination of another entity (Article 2497-bis Civil Code); • documentation regarding extraordinary transac - tions (eg, merger, demerger, transformation); • liquidation and appointment of liquidators; • in a listed SPA, any shareholders’ agreement; and • in an SRL only, any transfers of quotas and any update to the quota-holders’ list. Italian Anti-Money Laundering Law requires compa - nies to disclose the identity of their beneficial owner to the Companies’ Registry. However, this obligation is currently suspended pursuant to a court order and a case is pending in front of the Court of Justice of the European Union.
Failure to make required filings may have different consequences, depending on the nature of the actual filing: • some corporate acts must be filed to produce any legal effect and are void until the relevant filing is completed and processed (eg, incorporation deed and amendments of the by-laws); and • some other corporate acts are unenforceable against third parties until the relevant filing is com - pleted and processed. A failure to complete a required filing within the rele - vant deadline may also lead to pecuniary fines against directors, statutory auditors and General Manager (Articles 2630 of the Civil Code). Company directors may be held personally liable for damages suffered by the company, shareholders, or third parties due to their failure to file required docu - ments (eg, pursuant to articles 2395, 2476 and 2497- bis of the Civil Code). The Companies’ Registry exercises a formal and administrative review of the documentation and infor - mation provided to it, without any substantive legal review. The Companies’ Registry may reject the regis - tration of a corporate act, if it lacks formal mandatory requirements or appears to be unauthentic or filed by a person void of relevant powers. A more substantive legal review is carried out by the notary with respect to deeds in notarial form (eg, deed of incorporation, amendments to the by-laws, minutes of shareholders’ extraordinary resolutions). 5.4 Global Anti-Money Laundering Reporting Requirements (AML) Under Italian anti‑money laundering legislation, legal entities are subject to specific beneficial ownership transparency obligations. Companies are required to: • identify their beneficial owner (ie, the natural per - son or persons, other than the legal entity, who ultimately own or control it, and on whose behalf a business relationship is established, a professional service is provided, or a transaction is carried out by the entity) and
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