Establishment of S.r.l. and S.r.l.s. by videoconference: the new procedure introduced by Legislative Decree 183/2021

28 giu 2022

Dr. Cristina Camia 

The new procedure for the incorporation by videoconference of an italian limited liability company (so-called “Società a responsabilità limitata” - hereinafter "S.r.l.") and of a simplified limited liability company (hereinafter, "S.r.l.s.") has been introduced by the Legislative Decree n. 183/2021 (hereinafter the "Decree"), in implementation of the EU Directive 2019/1151. This new regulation represents a significant approach of the Italian and European legislator in the digitalization of corporate law, through the introduction of telematic tools aimed at simplifying the procedure (reducing costs and times), making possible an effective interconnection in the European market. Here below you can find the main innovations introduced by the new legislation, the scope of the procedure and the requirements for accessing it.

Premise

The new procedure, entirely telematic, provides that the notary public public receives the deed of incorporation of the company via videoconference with the electronic participation of the requesting parties or only some of them.
Therefore, the deed takes the form of an electronic public deed, drawn up and received by the notary public in the context of the provisions set up by the Decree (which text in italian you can find here), that aim to balance the need of simplification with the attribution of public faith to the act by the public official.
In the view of these purposes, the telematic platform has been implemeneted and will be managed by the National Council of Notaries.
It should be noted that before this new regulation, the signing in Italy of the deed of incorporation of a company had to strictly take place by means of a notarial deed, stipulated in front of the notary public by the parties physically present and of which the receiving notary public ascertained the identity, the will and collected the signatures.
We therefore come to illustrate the peculiarities of the new telematic procedure and the requirements to be able to access it.

The scope 

Through the procedure introduced by the Decree it is possibile to incorporate an S.r.l. and/or an S.r.l.s that have the following requirements:
  1. registered office in Italy;
  2. share capital entirely paid through cash contributions.
The regulation also specifies that the share capital must be fully paid by wired transfer to a dedicated bank account, held by the notary public (art. 1, par. 63 et seq., of Law n. 147/2013).
Therefore, are excluded from this proceeding:
  1. types of companies different from S.r.l. and S.r.l.s., since it is a specific choice made by the national legislator;
  2. the cases in which the share capital is not entirely paid by cash contributions, such as in the case of work or services contributions or contributions in kind.

The platform and notarial controls

The telematic platform, implemented and managed by the National Council of Notaries, allows the requesting parties to participate in videoconference and allows the notary public receiving the act to carry out the following controls:
  1. verify and ascertain the identity of the parties;
  2. verify the affixing of the digital signature by the holder or any other type of qualified electronic signature, pursuant to Legislative Decree of March 7, 2005, n. 82 (so-called “CAD” - Codice Amministrazione Digitale) and of the EU Regulation 910/2014 (so-called “eIDAS” - electronic IDentification, Authentication and trust Services);
  3. verify and certify the validity of the signature certificates used;
  4. have the perception of what happens to the parties connected by videoconference when they express their will.
Therefore, the notary public's checks concern, first of all, the verification of the identity of the parties participating in the incorporation of the company, who are required to sign the deed through a digital signature or other type of qualified electronic signature.
The notary public will also be required to verify, on the first hand, that the affixing of the signature is actually carried out by the holder and, on the other hand, that the signature certificates used are valid.
The platform will then have to allow the use of electronic identification means with a high level of guarantees and will have to ensure the uninterrupted connection of the parties by videoconference, the visualization of the document, the affixing of the digital signature by all the parties and the conservation of the deed.
Eventually, notarial checks extend to the investigation of the actual will of the parties, as the notary public must be able to have the perception of what happens to the parties when they express their will, in order to avoid any attempt of coercion or external influence.
In fact, art. 2, par. 5 of the Decree specifies that the notary public shall interrupt the session by videoconference whenever:
  1. he/she doubts about the identity of the parties;
  2. he/she notes non-compliance with the rules regarding the ability to act and the ability of the parties to represent a company.
In this case, the notary public will require the physical presence of the parties for the signing of the deed.

Residence of the parties

The most significant innovation is obviously that the new procedure allows the remote connection of the parties for the stipulation of a deed of incorporation of an S.r.l. and/or S.r.l.s. Therefore, it is no longer required the necessary physical presence of the parties before the notary public.
Furthermore, the provision under art. 2, par. 4 of the Decree is in line with the desire to create a transnational connection, where it expressely states that: "The notary public receives the deed in any case if all the parties have their residence outside the territory of the State". Consequently, even if none of the parties has their residence in Italy, any Italian notary public may receive the deed of incorporation of a company (based in Italy) electronically.
 

The form of the deed

As mentioned, at the end of the telematic procedure, the deed of incorporation of the company will take the form of an electronic public deed.
This particular figure of public deed is not extraneous to the Italian legal system, as it is provided as mandatory form in the case of stipulation of service, work or supply contracts with the Public Administration.
The electronic public deed provides that the parties, instead of signing a paper document before the notary public, shall sign the electronic document containing the deed itself with a digital signature, on which also the notary public will affix his/her digital signature (containing his signature and the seal). 
The electronic public deed, therefore, allows parties who do not live in the same place to be able to go each to their own notary public to stipulate the deed, thus allowing the exchange of the digitally signed document between the two notaries involved almost simultaneously. However, before the new regulation, the parties had to physically go to the office of the notary public in order to digitally sign the electronic public deed.
Nowadays, the legal system allows the parties to enter into the deed of incorporation of a S.r.l./S.r.l.s. via videoconference, with no physical movement being necessary anymore.
Art. 2 par. 3 of the Decree then provides that the deed can also be received by the notary public through the use of standard models adopted by decree of the Ministry of Economic Development within 60 days from the date of entry into force of the Decree, which will also be drawn up in English and published on the institutional website of each Chamber of Commerce.

 

 
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