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After sixty years from the Civil Code approval and four years from the
regulation reform related to companies listed in Stock Exchange, the
Italian corporation law makes a definitively page-turning.
It has been, in fact, fixed on January 1st, 2003 the en force commencement
of the new Civil Code concerning corporation law. It will probably be
one of the last national regulation reforms on this topic; henceforth
it is indeed foreseen a European Directive imposing a common ordinance
also in this field featured, so far, by a total lack of uniformed reference
regulations for all European Countries.
The Italian corporation reform foresees a thorough revision of the regulations
concerning public limited companies by shares (S.p.A.) and limited liability
companies (S.r.l.). To this latter, in particular, are being assigned
characteristics of its own which bring it very close to what is meant
by partnerships, eliminating thus that former continuous call up to
the rules referred to public limited companies by shares (S.p.A.) as
it happened to be a characteristic of the pre-existing regulations regarding
corporation law.
While examining the topic related to modifications on limited liability
companies (S.r.l.) we shall mainly notice how contribution of capital
modalities - of not less than 10.000 Euro - have been the subject of
remarkable changes; besides being possible to bestow the contribution
of capital through current money or goods there is also now the possibility
of doing it through an insurance policy conferment or a bank guaranty,
both purposed to the granting of work or services in favour of the company.
Upon subscription, it will have to be bank deposited at least a 25%
of the capital amounts or, in case of one-sided constitution basis,
the whole capital stock.
A liability limited company will also now be able to issue liability
bonds which, however, will only be allowed to be subscribed by professional
investors; in case of further public current circulation, the professional
investor will then be responsible of guaranteeing the issuing company's
reliability.
As a result
of the reform it becomes obsolete the principle of auditing panel on
a company's managing administration; this means that, analogously to
what is being applied to partnerships, it will be possible to commit
such management to several different people, jointly or disjointedly.
To these new structural ordinances are to be added important simplifying-purposed
steps on procedures, as per public limited companies by shares (S.p.A)
too, intended to the scope, for instance, of achieving a quicker constituent
act registration within the Companies' Register Office; of allowing
a derogation on due lasting-terms accordingly to law for mergers or
demergers whenever shareholders' approval is granted; the allowance
of transforming body corporations into non-body corporations and vice-versa;
in relation to limited liability companies it is, moreover, not anymore
foreseen the compulsory appliance of an auditing panel on decisions
taken by the shareholders; in fact, whether stated in the Articles of
Incorporation, these can deliberate through a written deed based on
an information report containing the topic subject of such decision
and the ways by which a shareholder will express his own approval concerning
such aforesaid decision.
Entering into a deeper analysis of the novelties arisen with respect
to public limited companies by shares (S.p.a) we shall notice how those
new statements refer mainly to Articles of Incorporation contents: enough
the sole indication of the Municipality the company belongs to, being
now unnecessary then a detailed address identification; this will avoid
to modify the articles of incorporation's deed itself in case of changes
in the registered office address within the same Municipality competent
area. It will not be anymore compulsory as well to indicate a fixed
lasting time of the company; should it be foreseen the issuing of new
shares it shall be necessary to specify whether those newly-issued shares
will have a nominal value being, with the reform, possible to issue
new shares without indicating their nominal value. Last: minimum share
capital amount has been fixed in Euro 120.000,00.
Nevertheless, the main novelty introduced in the italian corporation
law certainly concerns a radical rules revision of the public limited
companies by shares' governance; new regulations granting to public
limited corporations a resolute turning-point in sense of statutory
flexibility and autonomy, even if framed by a strict tutelage system.
Three, in particular, are the governance patterns subject to be adopted
by the companies:
1) the "ordinary" system: takes the present organisation pattern
based on an administrative body and on a supervising activity performed
by the Board of Auditors;
2) the "dualistic" system: germanic origin, based on an administration-control
system compounded by:
- a "management counsel" (administrates the company under
its own responsibility);
- a "surveillance counsel" (has the task of appointing and
revoking the management counsel members, approving the balance sheet
and promoting an effective appliance of the responsibility towards the
management counsel members);
3) the "monistic" system: anglo-saxon type, composed of:
- a "board of directors" holding administrative tasks and
appointed by the shareholders' meeting;
- a "management control committee", constituted within the
board of director components not performing an executive activity.
For Stock Exchange listed companies control should be performed, instead,
by a supervision enterprise subject to the checking of the special surveillance
Stock Exchange bodies (CONSOB).
With the law corporation reform appears in our settings as well the
"one-man limited company by shares" up to now recurrent only
as a temporary status during the company's existence and breeding, in
some cases, an unlimited responsibility of the sole shareholder towards
all company's obligations. Resulting from the new regulation it is foreseen,
instead, that a one-man S.p.A. can be founded as per contract or through
an unilateral act of constitution, It is foreseen too that the sole
shareholder is allowed, under specific conditions, to keep on taking
advantage of the benefit meant by the limitation of responsibility.
Moreover, for the first time, we can find in the italian Civil Code
contents the "voting trust" (formerly applied only to Stock
Exchange listed companies) to which a maximum lasting period of five
years is foreseen; a period of at least a previous six months period
of time is required, on the other hand, to each one of the contractors
for them to have the right to recede any contract.
Furthermore in this new context a debut is to be mentioned of the so
called "dedicated assets": this means that within the 10%
limit of the company's net capital, it will be possible henceforth to
assign one or more currency amounts, exclusively, to the conclusion
of an only-one business project; in this case, however, a specific separated
bookkeeping control shall be required.
There have been also introduced various shares that, based on what it
is established in the Articles of Incorporation, will grant users several
rights not only concerning profit distribution but also in matter of
loss incidence.
Last thing to point out - being it particularly significant - is the
fact that this reforming project aims to achieve a quicker definition
of judicial and extra-judicial procedures inherent to deeds of law corporation
controversies, financial brokerage and banking regulations.
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