The Articles of incorporation and statute

 

The first formality to be completed for the establishment of a company in Italy is the signing of the company contract consisting of the articles of incorporation (atto costitutivo) and the statute (statuto) by the founders members, in front of a notary.

 

The statute (bylaws) contains:

 

- all the dictates and rules that all shareholders undertake to respect;

- the list of all components and their respective offices.

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The articles of incorporation:

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- contains mandatory information, such as: the type of company, the name, the legal seat, the share capital, the object, i.e. the purpose for which the company was created, the general information of the shareholders;

- it is more detailed for joint stock companies and less detailed for partnerships (name and surname, place and date of birth, domicile and citizenship).

 

At the signing of the articles of incorporation, in the presence of the notary and all the founding members (the so-called simultaneous constitution), the digital signature for joint-stock companies is also valid for the signature, while for partnerships it is also necessary the recording of a private deed authenticated by the notary.

 

The founding members can go personally to sign the articles of incorporation and the statute or they can choose to give a mandate to a representative.

 

The practice provides that there is the possibility that the shareholders sign a preliminary agreement with which they undertake to subsequently sign the final articles of association, setting a date within which to proceed.

 

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Registration of companies

 

After signing the articles of incorporation and the statute by the notary, in order to start a new business in Italy it is necessary for the shareholders to register the new comany with the Register of Companies managed by the Chambers of Commerce; registration in the Register of Companies is mandatory for all economic operators who perform one of the following activities:

 

- production of goods or services;

- transport of goods and people, by land, water or sky;

- banking and insurance services;

- agency, brokerage for intermediation in the sale of goods or services;

- agricultural activity (if a certain turnover is exceeded).

 

Registration in the Business Register takes place by completing the "Single Business Communication" (Comunicazione Unica), it is an electronic procedure that allows you to obtain:

 

- the release of the VAT number and tax code;

- registration with INPS (the authority for the payment of pension contributions);

- registration with INAIL (the authority for the insurance of accidents at work).

 

Before sending the Single Communication, it is necessary to get in advance:

 

- the subscription to the free Telemaco service;

- the digital signature;

- the Certified Electronic Mail (PEC) address.

 

There are two types of entry in the commercial register:

 

- immediate start registration, for which the company is assigned the word "active";

- registration without immediate start, the company will be given the "inactive" status (dormant).

 

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Cancellation of companies from the Register of Companies

 

When a company or other economic entity ceases to exist, it occurs:

 

- the dissolution of the company;

- the eventual liquidation of the company;

- cancellation from the Company Register.

 

The cancellation of the company can also take place starting specific procedures by the court in cases of financial failure of a company, in order to protect the company's creditors, this occurs in the following cases:

 

- bankruptcy;

- arrangement with creditors;

- compulsory administrative liquidation;

- special extraordinary administration.

 

To make the cancellation, it is necessary to send a specific request by telematics channel to the Business Register using the Single Communication.

 

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Types of companies

 

Companies are entities distinct from:

 

- sole proprietorships;

- associations;

- consortium of companies;

- network contracts (contratto di rete);

 

and should not be confused with them, which are other ways by which it is possible to carry out economic activity in Italy.

 

There are various types of companies based on the following characteristics:

 

- a company can be formed by a single shareholder (so-called unipersonale) or by multiple shareholders;

- members can be both individual or legal persons;

- there are "for profit" companies, or,

- "non-profit" having the so-called mutual purpose, such are: cooperatives, mutual insurance companies;

- there are corporations, so called “società di capitali” (limited liability company or joint stock companies), which have the so called “autonomia patrimoniale”, so that, these kind of companies have the patrimonial responsibility to pay the company debt towards their creditors only with the company's assets - prorated for each shareholder to his own share - and not also with the personal capital of each partner, or,

- there are the "partnerships" which are responsible for payments of credits towards their creditors also with personal assets.

 

Within partnerships there are:

 

- simple companies (società semplice, ss);

- companies in collective name (società in nome collettivo, snc);

- limited partnerships (società in accomandita semplice, sas).

 

Within the corporations there are:

 

- joint stock companies (spa), there is also a single-member spa;

- limited liability companies (srl), one shareholder ltd;

- simplified limited liability companies (srls);

- limited partnerships (sapa).

 

There are also:

 

- "partnerships", which are made up of members exclusively registered in a professional bar association;

- "de facto companies", ie operating without written agreement;

- "European company" (societas europaea, SE) is governed by European Community rules, a minimum share capital of at least € 120,000 is envisaged for it, they are created following the merger of two companies based in at least two EU states, this happens above all when a company has branches in another EU country (for at least two years);

- "European cooperative society" (SCE), is a kind of mutual society, consists of at least five natural persons residing in at least two EU member states.

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Legalization and apostille of foreign documents for setting up a company in Italy (read more on Notary in Italy)

 

Authentic foreign acts must be legalized by Italian consulates abroad or by consular diplomatic representations.

 

Such formalities shall not apply to acts deriving from:

 

- countries with which there are bilateral or multilateral conventions in force also in Italy which expressly provide for the exemption from legalization and apostille;

- countries subscribing the Hague Convention of 5th October 1961, which provides for the replacement of legalization with the apostille formula.

 

The legalization consists of a certificate, issued by an Italian consulate abroad or by another Italian diplomatic authority, stating that:

 

- the public officer who drafted the act has the proper legal status and that

- the subscription made by the latter is authentic.

 

The legalization is carried out on a document written in foreign language that has already been translated in Italian by:

 

- an Italian diplomatic or consular representations, or

- by a certified sworn translator (usually enrolled in a list at the court).

 

The need to legalize or make the apostille on a foreign public act or document is necessary in order to give effect to that act in Italy: a foreign public act without legalization or apostille is in fact considered in Italy as a private writing not authenticated.

 

The apostille certification is a simplified procedure intended to give legal value in Italy to acts formed abroad, it can be adopted by all countries that have subscribed with the Hague Convention of 5th October 1961, at the same time it is also aimed at certify the legal qualification of the foreign official who has drawn up the act (read more on Notary in Italy).