ITALY Law and Practice Contributed by: Francesco Di Carlo and Flavio Acerbi, FIVERS Studio Legale e Tributario
The categories above are indicative, as Italian corporate law allows further customisation of the corporate governance rules within a com - pany’s by-laws, and capital companies may also be used for small-sized enterprises with a direct involvement of participants in the management (typical of partnerships). Further distinctions may be drawn within some of the different corporate forms indicated above, depending – for instance – on the corporate purpose (eg, if the company pursues a lucrative or mutualistic purpose), business activity (eg, an SPA may be used as collective investment undertaking in the form of a SICAF (ie, invest - ment company with fixed capital) or a SICAV (ie, investment company with variable capital), access to capital markets (ie, non-listed and listed companies). It is also possible to set up a company in Italy in the form of societas europea or European Company, pursuant to Council Regulation No 2157/2001. For the sake of clarity, in this chapter the focus will be on the rules applicable to SPAs and ordi - nary SRLs (ie, not considering the special rules applicable to so called “simplified SRL” , the “SME SRL” and the “Innovative Start-up SRL” ), as these are the most common forms of corpo - rate organisations. The analysis will also be limited to rules applica - ble to the generality of Italian companies, with - out regard to special sector laws. The corporate governance rules applicable to Italian companies listed on an Italian regulated market (hereinafter simply referred to as “listed companies” ) will be considered, not including a comprehensive analysis of the rules applicable
to companies listed on Italian multilateral trad - ing facilities (MTF), which are set forth under the applicable listing rules. 1.2 Sources of Corporate Governance Requirements The principal source of corporate governance requirements for Italian companies is the Italian civil code (the “Civil Code” ). The general corporate governance structure of each company is reflected in its deed of incor - poration and by-laws. Each company may adopt further internal rules and policies on specific aspects of its corporate governance (eg, board internal regulation, shareholder meeting regula - tion). An Italian listed company is also subject to specific corporate governance laws, and most notably: • Part IV of the Unified Financial Code ( “UFC” , Legislative Decree 58/1998), an overarch - ing legislative decree regulating the financial sector; • second-level regulations issued by the Italian market authority, Consob (most notably, Con- sob Regulation No 11971/1999 on issuers; Consob Regulation No 17221/2010 on related parties’ transactions; and Articles 15 to 18 of Consob Regulation No 20249/2017, setting forth requirements for listed entities in spe - cific situations); • guidelines, Q&As and notices issued by Con - sob; and • further EU and Italian laws and regulations regarding specific aspects that may impact corporate governance, such as market abuse regulation (Regulation EU 596/2014 and relevant delegated and implementing EU and
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