On July 3rd, 2023, the Italian D.lgs. 19/2023 transposing the Directive (EU) 2019/2121 amending the Directive (EU) 2017/1131 as regards cross-border conversions, mergers, and division, has come into force.
For the first time the Italian legal system will consider a “conversion” the transfer of the company registered office, a term that has been used only to identify the operation through which a company changed its legal form (i.e., from a limited liability company to a company limited by shares).
The procedure in place until July 3rd
The procedure is quite simple: the company should pass a resolution providing for the cross-border conversion, take the statutory form provided by the destined country and appoint the corporate bodies as required by the legislation in force in that country.
If the company is moving to Italy, then the resolution should be registered in the Registro delle Imprese after an Italian notary has verified its legitimacy, otherwise – if the company is leaving Italy – the resolution should be registered provisionally in the Registro delle Imprese while waiting for the registration in the equivalent foreign register.
The new procedure in force from July 3rd
The new D.Lgs. 19/2023 modifies the procedure by creating a three-step mechanism.
The first phase is a preparatory phase: the project shall be approved, and all the necessary documents shall be collected so that the shareholders can make an informed decision. Employees and creditors shall be made aware of the project too.
The second phase concerns the adoption of the resolution by the shareholders approving the conversion project. Once adopted, the resolution should be certified by the competent authority of the destined country (the notary in Italy). This pre-conversion certificate certifies that all the preliminary acts and formalities have been performed in accordance with the law of the departure country.
The third phase is the one that will be carried out in the destination country. The competent authority shall release the definitive certificate approving the conversion. This document certifies that all legal requirements of the country of destination have been met by the company and that the operation has been successful.
The preliminary phase in Italy
At this stage the company needs to fulfil a number of different steps.
First of all, the cross-border conversion project shall be set up. This document shall contain a range of information including the legal form and statute that the company plans to adopt in the destination country, along with a list of all public contributions and financing received in whatever form from the departure country in the five years preceding the date of the filing of the transformation project (the purpose is to avoid relocation as a result of state benefits).
The cross-border conversion project shall be filed for registration in the Registro delle Imprese at least 30 days before the resolution approving it. The administrative body shall draw up a report illustrating the contents of the approved project to the shareholders and employees, which shall be made available to them for at least 45 days prior to the shareholders’ meeting.
As the shareholders opposing the conversion retain their right of withdrawal, it is necessary for the company to obtain a congruity opinion from an auditor on the value of the withdrawing shareholder’s participation.
Once the assembly has approved the transfer transaction, the company must request the notary to issue the preliminary certificate, attaching a number of other documents required by the law. The notary’s certificate must be issued within 30 days of the request, but not before at least 90 days have passed from the date on which the transfer project was filed. This time limit is provided for the protection of the company’s creditors whose claims predate the registration of the conversion project. Creditors who fear that they will be materially adversely affected by the operation may file an objection by referring the matter to the court. If the court finds that the creditors’ threat is unfounded, it may order the transaction to take place notwithstanding the opposition.
Once the procedure is fulfilled the possible outcomes are two: a new Italian company is incorporated, or a new company is incorporated abroad.
In the first instance there is a double path: if the competent authority from the departure country has issued the decision approving the project in the form of a public deed, then this must be filed with an Italian notary who will issue the definitive certificate, which shall then be filed for registration, together with the preliminary one from the departure country and the approving decision, in the Registro delle Imprese; if the competent authority has issued the mentioned decision not in the form of a public deed, then the Italian notary shall draw it up in the form of a public deed, which will be filed for registration along with the preliminary certificate issued by the departure country’s notary and the definitive certificate by the Italian notary in the Registro delle Imprese. For both these paths, the final act is the communication issued by the Italian Registro delle Imprese to the foreign equivalent in order to have the transferred company cancelled.
In the second instance – that is the foreign relocation of an Italian company – the competent foreign authority shall draft the definitive certificate once the preliminary one and the public deed drawn up by the notary have been received.
These three documents shall be registered in the Registro delle Imprese, who will then proceed to delete the company once it has been registered in the foreign competent register.
In both cases the effective date is the one as provided by the applicable law. For the Italian law the effect is produced starting from the date of the registration of the cross-border conversion resolution, but the conversion project may provide for a different one.
What about the ongoing company legal relationships?
Since the company is not dissolved, every ongoing legal relationship will continue. Therefore, every shareholder – or member – that has unlimited liability will still be unlimited liable unless creditors have expressly released them.