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CORPORATE | Notarial Council of Triveneto’s new corporate guidelines

In October 2024, the Notarial Council of Triveneto issued the following new guidelines on corporate matters.

  • Guideline No. I.C.35/2024, according to which it is not only the individuals specified in Article 2382 of the Italian Civil Code that cannot be appointed as directors and, if appointed, shall forfeit their office, but also all those who do not have full capacity to act, such as unemancipated minors and individuals benefiting from support administration who have not retained such full capacity to act pursuant to Article 409.1 of the Italian Civil Code.
  • Guidelines No. E.B.4/2024 and E.B.5/2024, regarding the procedure for the transfer of a company’s registered office from Italy to a foreign state.

1. In line with the provisions of Article 86-quater, Directive (EU) No. 2017/1132, introduced by Directive (EU) No. 2019/2121, the Italian notary is not responsible for verifying compliance with the foreign regulations of the destination state, since this is the responsibility of the foreign authority in charge of issuing the certificate of legality in the destination state.Nonetheless, if the foreign state to which the registered office is transferred has not transposed Directive (EU) No. 2019/2121, the Italian notary will also have the power to notify the competent Italian Companies’ Register of the company’s registration in a foreign register, in order to obtain its cancellation.

2. In relation to the majorities under Article 24 of Legislative Decree No. 19 of 2 March 2023, a double quorum must also be achieved in joint stock companies (società per azioni): (1) with regard to the share capital, amounting to more than one third thereof; (2) calculated on the capital present at the shareholders’ meeting, equal to at least two-thirds thereof.

3. In relation to the proposed transformation of an Italian partnership (società di persone) into a foreign corporation (società di capitali) of one of the types listed in Annex II to Directive (EU) No. 2017/1132, the general principle of unanimous consent under Article 2252 of the Italian Civil Code applies.

  • Guideline No. I.H.22/2024, according to which a shareholder’s unreasonable refusal to approve an asymmetrical demerger plan prepared by the directors under Article 2506.2 of the Italian Civil Code for the stated purpose of resolving a deadlock is deemed to constitute a just cause for exclusion, and as such may be included in the bylaws under Article 2473-bis of the Italian Civil Code.

Said exclusion clause may be introduced into the bylaws after the incorporation of the company, with the majorities required for amending the bylaws, provided that the operation of the exclusion relates to conduct subsequent to the date of its introduction.

Newsletter n. 101- November 2024