Telematic incorporation of a limited liability company: now you can!

Legislative Decree No. 183 of 8 November 2021 (G.U. No. 284 of 29 November 2021) which implements EU Directive No. 2019/1151, opens the door to the incorporation of limited liability companies by means of a digital public deed, without the stipulating parties being phisycally present before the notary. Thanks to this recent legislative decree, the public deed of incorporation can be executed in digital form by videoconference from your own office or from any other place, even if located outside the national territory.

But, more specifically, how does this incorporatioin works? An essential tool for this new way of company incorporation is the telematic platform set up and managed by the National Council of Notaries (Consiglio Nazionale del Notariato). This telematic platform, which has already been implemented and which can be used by notaries, ensures the verification of the identity of videoconference attendees, the verification of the digital signature or other qualified electronic signature, the verification and attestation of the validity of signature certificates, as well as the perception of what happens to the connected parties when they express their will. The platform also ensures a continuous connection with the attendees by videoconference, the viewing of the deed to be signed, the signing via digital signature by all the stipulating parties and the simultaneous issuing of a suitable digital signature to the parties who do not have one, thus enabling to comply with all the formalities necessary for the public deed without the parties to be physically present before the notary.

This is a significant step forward in the long-standing debate, which has been strengthened by the recent pandemic, on the possibility of introducing into the Italian legal system a “remote” notarial deed in which the verification of the identity of the parties can be carried out by the notary with digital tools and the deed signed by digital signature.

However, not all types of companies can be incorporated by means of a digital public deed. The Legislative Decree 183/2021 provides for certain subjective and objective limits on the use of this new method. Telematic incorporation is for limited liability companies only, both 'ordinary' and simplified, having their registered office in Italy. As regards the objective limits, on the other hand, the decree requires a corporate capital paid by means of cash contributions only and therefore to be received by the notary by means of a bank transfer (executed prior to the execution of the deed of incorporation) to the dedicated bank account referred to in Article 1, paragraph 63, Law No. 147/2013 and to be transferred by the same notary to the new company once it has been registered in the Companies' Register. Limited liability companies with contributions in kind, other types of commercial companies (società di persone) and partnerships (società di capitali) will therefore remain outside the scope of the new incorporation procedure and for the incorporation of these companies the public deed physically signed before the notary is still required.

With regard to the choice of the notary, the reference to Article 26 of the Notarial Law contained in Article 2 paragraph 4 of Legislative Decree 183/2021 requires the parties to choose the notary only among notaries having their registered office in the territory (Region or District of the Court of Appeal, if included among several Regions) in which at least one of the quotaholder of the company to be incorporated has its residence or its registered office. On the other hand, if all the quotaholders are resident outside the national territory, any Italian notary may be appointed to receive the telematic public deed of incorporation.

Legislative Decree 183/2021 has also introduced the possibility to incorporate by means of a telematic deed and via videoconference the Italian branch of a company subject to the law of an EU country. Thanks to said decree, it is now possible filing with a notary in Italy via videoconference all the documents necessary for the incorporation of an Italian branch of a company existing under the laws of an UE member country - contained in computer duplicates or in computer copies issued and certified by the Companies’ Register where the foreign company is registered - and having the relevant public deed of deposit made telematically as described above. The registration procedure of the Italian branch with the competent Italian Companies' Register will then be completed remotely, with digitally signed documentation, and digitally signed application by the notary. The publicity formalities following the registration may be also carried out by means of an electronic signature or digital signature by a director of the company or by the appointed person in charge.