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21/03/2017

From 20 July 2016 it is possible to incorporate online without the intervention of a notary

innovative start-ups in the form of limited liability companies (s.r.l.) through the website startup.registroimprese.it.

The new alternative incorporation procedure, as well as the preliminary examination of the most relevant aspects of the model of articles of association and of corporate by-laws developed by the Ministry of Economic Development (“MISE”) have already been the subject matter of two previous information notes, to which reference should be made for further details.

Please find below the second of the scheduled in-depth notes regarding the most relevant aspects of the new legislation on online incorporation of innovative start-ups in the form of limited liability companies (s.r.l.).

*****

  1. Foreword

One of the main innovations in the recent legislation concerning online incorporation of innovative start-ups in the form of limited liability companies (s.r.l.) is represented by the relevant models of articles of association and by-laws, adopted by decree of 17 February 2016 of the Ministry of Economic Development (hereinafter, respectively, the “Ministerial DecreeandMISE) ([1]), implementing the provisions of Decree Law no. 3 of 2015 (the so called  “Investment Compact Decree”) and by Decree Law no. 179/2012 (the so called “Decreto Crescita bis”).

However, in such respect, it is necessary to take into consideration the scope of application and “binding nature” of such models within the different procedures and methods whereby it is possible to incorporate innovative start-ups in the form of limited liability companies (s.r.l.).

  1. Scope of application of the ministerial models in the ordinary procedure of incorporation

Article 4, paragraph 10 bis, of the Investment Compact Decree establishes that the articles of association of innovative start-ups and their subsequent amendments “(…) be drawn up by public deed, or by deed executed with the procedures provided for by Article 24 of the digital administration code, pursuant to legislative decree no. 82 of 7 March 2005  [i.e. deed executed by digital signature, editor’s note]. The articles of association and their subsequent amendments are drawn up in compliance with the uniform model adopted by decree of the Minister of Economic Development and are transmitted to the competent office of the register of enterprises pursuant to article 8 of Law no. 580 of 29 December 1993, as subsequently amended”.

Analysing what the regulations say, it appears – at first sight – that the general provision on drafting in compliance with the uniform model adopted by the MISE would refer to both methods of incorporation of innovative start-ups mentioned in the above paragraph, including therefore the ordinary procedure of incorporation under article 2463 of the Italian Civil Code ([2]).

However, at the same time, it is necessary to highlight that the relevant MISE implementing decree, when adopting the models of articles of associations and by-laws for start-ups in the form of limited liability companies (s.r.l.), makes exclusive reference, with regard to their application, to the new electronic incorporation procedure ([3]).

Likewise, Ministerial Decree of 28 October 2016, approving the model for amendments to the by-laws of innovative start-ups in the form of limited liability companies (s.r.l.) regulates only the amendments to be made by electronic procedure ([4]).

Moreover, the clarifications given by the MISE in circular no. 3691/C of 1 July 2016 addressed to the Chambers of Commerce, Industry, Crafts and Agriculture should be taken into account. Said circular states that the standard model of articles of association and by-laws adopted by the Ministerial Decree is “aimed at the incorporation of start-ups, according to the procedure derogating from the provisions contained in the codes introduced by the abovementioned paragraph 10 bis” and that, therefore, the Ministerial Decree “in compliance with the normative delegation, has, obviously, regulated exclusively the alternative standard model, since the ordinary incorporation by means of public deed remains governed by the Italian Civil Code, by Law 89 of 1913 (…) and by the other system rules”.

So, apparently, such circular makes a clear distinction between the two procedures of – ordinary and electronic – incorporation, of which only the second one is expressly identified as the subject-matter of the Ministerial Decree.

In light of such inconsistency between the provision of the Investment Compact Decree and the provisions of the subsequent implementing legislation referred to above, one could wonder whether the models adopted by the Ministerial Decree are also binding when a start-up is incorporated with the intervention of a notary.

To answer such question, it is useful to take a step back and to identify the reasons that led the legislator to establish that the contents of the articles of association and by-laws of innovative start-ups must be bound to those of the models predetermined by the administrative authority, with the only possibility to select, during the compilation process, the options made available in the same models.

III.        Arguments that apparently confirm the binding nature of the models of articles of association and by-laws also within the ordinary procedure of incorporation.

The adoption of uniform models provided for within the new digital incorporation procedure is certainly the result of the legislator’s intention to combine, on the one hand, the possibility to reduce formal and economic obligations connected with the incorporation of corporations and, on the other hand, the need for a check on the legitimacy of companies (i.e. innovative start-ups in the form of limited liability companies (s.r.l.) incorporated online) that are registered in the register of enterprises without their articles of association and by-laws being subject to the close examination of a notary confirming their legitimacy.

In other words the notary’s intervention would be replaced by a preventive obligation (a sort of ex ante control) incumbent on the intending quotaholders with regard to the content of the articles of association and by-laws of one’s own innovative start up ([5]).

Should the purpose of ministerial models be only that of making up for the notary’s control, one may clearly assume that exactly the notary, as entity in charge of carrying out investigations on the legality of the deeds that are to be drawn up by the same may intervene on the model – amending and supplementing them – and, even, take them in no account.

However, the same article 4, paragraph 10 bis of the Investment Compact Decree, makes reference to two further objectives, that is “to favour the start-up of entrepreneurial activities” and “to assure a more uniform application of the provisions on innovative start-ups and certified incubators”.

Indeed, ministerial models prepared for limited liability companies (s.r.l.) reflect the special regulation that Decreto Crescita bis has specifically created for innovative start-ups, affecting (sometime to a relevant extent) general corporate law, with a view to remedy, through structural legislative interventions, the Italian competition deficiency in the field of technology and development, as well as to stimulate the national economy by the relaunch of innovative entrepreneurship.

Take, by way of example only, with reference to the model of by-laws:

  • clause 8.3 that, implementing article 26, paragraph 6, of Decreto Crescita bis, admits the possibility for the company to carry out transactions on its own holdings in derogation from the prohibition of article 2474 of the Italian Civil Code, should said transactions be carried out on the basis of incentive plans awarding quotas to employees, collaborators, members of the administrative body or workers and providers of services, including professional services;
  • clause 8.2 that, in compliance with the provisions of paragraphs 2 and 5 of article 26 of Decreto Crescita bis, in addition to ordinary quotas, provides for the possibility to issue, in derogation of article 2468, paragraphs 1 and 2, of the Italian Civil Code, particular classes of quotas with different rights, which may be offered to the public as financial instruments, even through online portals for the raising of capital;
  • clause 8.4, according to which the particular classes of quotas under letter (b) may be provided with quotaholders’ rights not proportional to the holding owned and hence, pursuant to article 26, paragraph 3, of Decreto Crescita bis, they may even have no voting rights at all, in derogation of article 2479, paragraph 5, of the Italian Civil Code;
  • clause 7.4, whereby, implementing article 26, paragraph 7, of Decreto Crescita bis, the company may issue specific financial instruments bearing property and administrative rights, (again) in derogation of article 2468, paragraph 1, of the Italian Civil Code.

In particular, (i) the removal of the prohibition to make transactions on own holdings (on the mentioned conditions) has the purpose to promote the involvement of skilled professionals in the life of start-ups;  (ii) the offer to the public of quotas and equity financial instruments issued by start-ups, even through online portals, widens funds raising channels, adding an option to financing alternatives for limited liability companies (the so called crowdfunding activity) (iii) the creation of a class of quotas with rights different from ordinary rights grants the possibility to “reserve” said quotas for potential investors and to differentiate them from founding partners/entrepreneurs, in a similar way as in stock companies ([6]).

So, the by-laws clauses under (a) – (d), together with the other ones provided for in the uniform model, should be used, as a whole, both to make the company specialised in the reference sector efficient and competitive on the market and to simplify the raising of financial resources, thus enabling the company to expand and achieve the set goals.

Hence, it may be inferred that uniform models were “custom made” for innovative start-ups in the form of limited liability companies (s.r.l.), in order to implement the derogations from general corporate law introduced by Decreto Crescita bis and to enable the intending quotaholders to pursue the objectives of the companies; objectives that, according to the literal provision of the Investment Compact Decree, should associate and put in the same “minimum starting conditions” all innovative start-ups, including those incorporated by public deed.

  1. Arguments questioning the binding nature of the models of articles of association and by-laws in the ordinary procedure of incorporation

It must be reminded, however, that the implementing legislation briefly recalled in paragraph II hereof does not incorporate the formulation illustrated in the previous paragraph, since, as said, it does not impose the adoption of uniform models in case of innovative start-ups incorporated with the ordinary procedure by public deed, or better, it does not mention said procedure at all ([7]).

In such respect, some scholars deem that the Ministerial Decree would not simply fail to contemplate the ordinary procedure of incorporation, but would go beyond, imposing, in article 1, paragraph 3, the use of IT methods only: “The deed executed in ways other than those provided for by paragraph 2 [that is in electronic form and with digital signature, editor’s note], cannot be registered in the register of enterprises” ([8]), thus excluding the possibility for innovative start-ups in the form of limited liability companies (s.r.l.) to be incorporated by public deed. Also for this reason ([9]), according to the mentioned legislation, the MISE decree would be unlawful ([10]).

Despite the fact that such latter opinion is, definitely, closer to a literal interpretation of the primary law, the MISE seems to have embraced the opposite theory:

  1. in the first place because, by circular issued on 1 July 2016, the MISE has made it clear that the digital signature procedures is discretionary and alternative to the ordinary one and, consequently, “ (…) these offices [that is the offices of the Chamber of Commerce, Industry, Crafts and Agriculture, editor’s note] may continue to register in the ordinary and special section, start-ups incorporated in the form of limited liability companies, pursuant to article 2463 of the Italian Civil Code, by public deed” ([11]);
  2. in the second place because, by note no. 411501 of 22 December 2016, the MISE has definitely clarified that “the legislator has introduced a simplified method of incorporation that does not replace, but exists alongside the ordinary one provided for by article 2463 of the Italian Civil Code”, that “implementing ministerial decrees (…) lay down the methods for the drawing up and compilation of the electronic file, obviously without the need to dictate criteria relating to the ordinary drawing up and incorporation of start-ups, since they are governed by the provision of the Italian Civil Code and by the Law on Notaries” and that “notaries may certainly continue to draft by public deed deeds of incorporation and amendment of limited liability companies (s.r.l.) having a start-up nature, according to the modalities indicated by the Italian Civil Code and by the Law on Notaries. Only when the notary is required to certify the electronic private deed of incorporation of start-ups pursuant to article 5, paragraph 1, of Ministerial Decree of 7 February 2016, then he will have to certify an electronic original drawn up on the basis of the standard approved by this Minister”;

Without prejudice to the (abovementioned) considerations that are based on the literal tenor of the primary law, the position so expressed by the MISE could be explained in light of the fact that – given the secondary nature of said source of law – the text of the Ministerial Decree, which always and only deals with the electronic incorporation procedure and never with the ordinary one, could anyway leave room to an interpretation compliant with the provision of the primary law, an interpretation that would, therefore, admit the possibility to maintain the ordinary procedure of incorporation alongside the electronic procedure of incorporation recently introduced (hence, the mentioned article 1, paragraph 3, should be read in this perspective: the deed of incorporation that, within the electronic incorporation procedure is executed in ways other than those provided for by article 24 of the digital administration code cannot be registered in the register of enterprises).

So, remaining faithful to the ministerial interpretation one may consider that the Ministerial Decree itself, in distinguishing the regulation applicable to start-ups incorporated online from the one applicable to start-ups incorporated by public deed (although not fully consistently reflecting the literal provision of article 4, paragraph 10 bis of Decree Law no. 3/2015) ([12]), has introduced a “compromise” solution, probably more in line with the complex of rules of corporate law of our system.

Indeed, the Ministerial Decree assures, on the one hand, the form of control on legality ex ante that the legislator contemplated for innovative start-ups incorporated by electronic procedure ([13]) and, on the other hand, it assures anyway the drafting autonomy of notaries in the ordinary procedure of incorporation, referring to their professional skill the usual legality investigation on articles of association and by-laws of innovative stat-ups, without binding notaries to the texts of the models prepared by the MISE that must instead by necessarily observed in the online incorporation procedure.

  1. Conclusive considerations

So, in the light of the foregoing, it is reasonable to deem that:

  • notwithstanding the literal tenor of article 4, paragraph 10 bis, of the Investment Compact Decree and the need for uniformity mentioned therein ([14]), the implementing decree would NOT impose the adoption of uniform models of articles of association and buy-laws approved by the MISE even in case of incorporation of innovative start-ups in the form of limited liability companies (s.r.l.) by means of public deed;

(2)         based on the Investment Compact Decree, on MISE circular no. 3691/C and MISE note no. 411501 of 22 December 2016, the incorporation of innovative start-ups in the form of limited liability companies (s.r.l.) is certainly permitted even through the ordinary procedure by public deed, which remains governed by the Italian Civil Code and by the other laws of the system;

(3)         in the procedure for the incorporation by public deed, in the absence of specific obligations to comply with the models, it can be assumed that the notary, as expert in charge of checking the legality of the deeds, may intervene supplementing or amending said models or even not take them into account, although, obviously, complying with the special regulation provided for innovative start-ups, as provided for by Decreto Crescita bis;

(4)         without prejudice to the foregoing, it is however reasonable to think that – upon the incorporation of innovative starts up in the form of limited liability companies (s.r.l.) in compliance with the ordinary procedure – it would be rather difficult for notaries to ignore the ministerial models of by-laws and articles of association; indeed, said models necessarily represent an excellent initial draft for operators in order to draw up the numerous clauses of the articles of association and of the by-laws that they will have to draft, given that the provisions contained in the ministerial models have been prepared and approved by the MISE and, therefore, may be considered as lawful by definition.

Therefore, in reply to the initial questions under point II, it could be concluded that, within the ordinary incorporation procedure involving a notary, the models of articles of association and by-laws of innovative start-ups in the form of limited liability companies (s.r.l.) approved by the MISE may, at most, be used as initial basis, reference point or mere “source of inspiration”, without however being in any way binding for the notary’s drafting activity.

 

[1] Following the approval of the technical specifications for the drawing up of such models (by directorial decree of 1 July 2016) and certain formal amendments made to the texts of the Ministerial Decree and of the annexes (by decree of 7 July 2016), the provisions of the Ministerial Decree became effective on 20 July 2016 (article 8 of the aforesaid directorial decree).

[2] Along the same lines, v. A. Carducci Artenisio, La start up innovativa s.r.l. costituita con firme digitali non autenticate, in Giustizia civile.com, 29 August 2016, http://giustiziacivile.com/printpage/1041, 21 November 2016, G. Ferri jr and M. Stella Richter jr, Decreto del Ministro dello Sviluppo Economico del 17 febbraio 2016, start-up innovative e diritto delle società: un parere, in  Riv. not., 2016, 609 ff.

[3] Starting from last recital, the decree states: “Considering that article 4, paragraph 10 bis, of decree law no. 3 of  24 January 2015, provides that in derogation of article 2463 of the Italian Civil Code, such deeds may be drawn up in electronic form with uncertified signature of the subscribers pursuant to article 24 of the Digital Administration Code; lays down: Article 1 – Formal obligation  – 1. In derogation of the provisions of article 2463 of the Italian Civil Code, contracts of limited liability companies, governed therein, having as their exclusive or prevalent object the development, production and marketing of innovative products and services with high technological value and which require the registration in the special section of start-ups under article 25, paragraph 8, of decree law no. 179 of 19 October 2012, are drawn up in electronic form and executed by digital signature pursuant to article 24 of the Digital Administration Code, by each of the subscribers, in case of multi-person companies, or  by the sole subscriber in case of single-member companies, in full compliance with the standard attached to this decree as Annex A, drawn up on the basis of the technical specifications of the model, pursuant to article 2, paragraph 1.”.

[4] Indeed, article 1 of Ministerial Decree of 28 October 2016 provides that: “1. In derogation of the provisions of article 2480, second paragraph, of the Italian Civil Code, deeds amending the articles of associations and by-laws of limited liability companies having as their exclusive or prevalent business scope the development, production and marketing under article 25, paragraph 2, of decree law no. 179 of 18 October 2012, are drawn up in electronic form and executed by digital signature pursuant to article 24 of the Digital Administration Code, by the Chairman of the meeting and by each of the quotaholders who approved the resolution, in case of multi-person companies, or by the sole quotaholder in case of single-member companies, in full compliance with the standard attached to this decree as Annex A, drawn up on the basis of the technical specifications of the model, pursuant to article 2, paragraph 1.

  1. Companies shall avail themselves of the provisions of this decree for amendments not implying the loss of the requisites under article 25, paragraph 2, of decree law no. 179 of 19 October 2012 and the cancellation from the special sections of the register of enterprises of innovative start-ups. To that effect, simultaneously with the filing of the amending minutes for the registration in the ordinary section of the register of enterprises, the start-up shall file a declaration certifying that the requirements under paragraph 15 of article 25 of decree law no.179 of 18 October 2012 are still complied with (…)”.

[5] This issue has been dealt with in the information note “Ministerial model of by-laws for innovative start-ups in the form of limited liability companies (s.r.l.): is it a valid substitute for the preventive administrative control provided for by the EU legislation?”.

[6] For comprehensive details of the purposes of the of the provision of Decreto Crescita bis please see S. Guizzardi, L’impresa start up innovativa costituita in forma di s.r.l., in Giurisprudenza commerciale, no. 4, 2016, 549 and ff., that, inter alia, brings into question that equity financial instruments can be offered through online portals.

[7] see above, paragraph II.

[8] Cit. G. Ferri jr and M. Stella Richter jr , op. cit., 609 and ff.

[9] Indeed the Ministerial Decree is considered unlawful for further reasons, for which reference should be made to G. Ferri jr and M. Stella Richter jr, op. cit., 609 and ff.

[10] Along the same lines, see G. Ferri jr and M. Stella Richter jr , op. cit., 609 and ff.

[11] The article at issue (see note no. 2), published in August 2016, was probably drawn up before the issue of circular no.3691/C.

[12] See paragraph II above.

[13] See paragraph III above.

[14] In such respect, reference should be made again to the expression “a more uniform application of the provisions on innovative start-ups”, contained in article 4, paragraph 10 bis.

20/01/2017

On 27 September 2016, the State Administration of Foreign Experts Affairs of the PRC issued the Notice on the Trial Implementation Plan for the System of Work Permits for Foreigners in China (the “Notice”).

The Trial Implementation Plan (the “Plan”) aims at merging the two previously separate systems of the “Work Permit for Foreign Experts in China” (applying to certain categories of specialised foreign workers) and the “Foreigners Employment Permit” (applying to “common” employees) into one system, having at its core the “Work Permit for Foreigners in China” (the “Work Permit”).

The Plan is in place for trial implementation in the municipalities of Beijing, Tianjin and Shanghai and in the provinces of Hebei, Anhui, Shandong, Guangdong, Sichuan, Yunnan and Ningxia Hui from October, 2016 until March, 2017. The aim is to adopt the new system nationwide starting from April, 2017, after which working permits issued under the “old regime” will remain valid and will be converted into “new regime” permits on a voluntary basis.

The Plan splits the procedure to obtain a work permit into two main parts. Before entering China, the applicant must submit application documents through an online system for preliminary examination (the employer will need to register into the system by means of a specific procedure). Then, generally, the documents will be sent in printed format to the competent authorities in China, leading to the issuance of a “Notification Letter for Work Permit” (“Notification Letter”). The “Notification Letter” will then be presented to the PRC embassy or consulate of the applicant’s residence in order to obtain a visa; within 15 days of entry into China, the “Notification Letter”, along with the application documents in printed format, must be submitted to apply for a Work Permit. Finally, the Work Permit will be submitted to the local Public Security Bureau (police station) to obtain a residence permit.

The new system divides applicants into three categories. Category A (“outstanding foreign talents”) brings together, among others, persons having outstanding achievements in the fields of medicine, economics, technology, scientific research, architecture, industrial design, literature, sports, etc.; high-level personalities at certain international academic institutions, international financial institutions and international accounting firms; holders of high leadership posts in foreign government administrations, international organisations and NGOs; high level managers in foreign-invested enterprises in China belonging to the encouraged sectors of economy that fulfil certain standards in terms of revenue, employees, etc.; persons fulfilling certain remuneration standards and paying taxes for a certain amount (to be defined from time to time by the authorities); persons having invested in enterprises by means of own inventions, patents, etc.. Category B (“foreign professional talents”) mainly includes foreign professionals holding a bachelor’s degree or higher study qualification and having working experience of two years or more in the relevant field. Category C (“ordinary personnel”) groups foreigners hired based on a permit by the Chinese government or based on agreements between the Chinese government and a foreign government, trainees under intergovernmental agreements, etc..

In addition, the Plan provides for a (provisional) table that attributes a score to individuals according to parameters such as remuneration, study and professional qualification, working experience, age, etc.. Individuals meeting a certain threshold are admitted into category A or B, according to the number of points, even though they do not belong to the groups listed in the Plan a belonging to such categories.

No restriction on the number of permits is stipulated for category A, nor are there age or working experience requirements. A so-called “green channel” treatment applies, meaning that category A individuals benefit from an accelerated procedure for issuance of a Notification Letter and of a Work Permit. Moreover, individuals falling into category A do not need to submit application documents in printed format until after they have entered into China.

Category B individuals are granted work permits “based on market demand” and will need to fulfil the requirements of a “Guidance Catalogue for Foreigners Working in China” (not issued as of yet); they will generally need to be 60 or younger, to hold at least a bachelor’s degree and to have at least two years’ experience in the relevant working field.

Lastly, a so-called “quota administration” applies to category C workers, meaning that permits will be granted in the maximum number stipulated by the Chinese government from time to time. No privileged application channels apply to either category B individuals or category C individuals.

On one hand, the Plan brings unification, by merging the two previously existing regimes into one system for all foreigners working in China. This entails the obvious advantages of straightening out procedures and rationalising the use of administrative resources. On the other hand, the new system differentiates applicants based on the degree to which they meet the needs of Chinese economic policies. Notably, the introductory part of the Notice uses the expression “gather and put to use the talented of the world”: indeed, the Plan provides a privileged path for applicants whose skills and qualifications are especially valued.

4/10/2016

From 20 July 2016 innovative start ups in the form of limited liability companies (s.r.l.) can be incorporated on-line and without resort to a notary.

Such legislative innovation, potentially revolutionary because of the practicality and cheapness that arte typical the new incorporation process, poses however certain interpretation and application issues regarding, in particular, the regulatory models of articles of association and corporate by-laws that must be complied with for the successful completion of the electronic incorporation process.

This note is meant to provide some initial points worth consideration with regard to certain issues of key concern that at first sight seem to characterize the new process for the incorporation of innovative start-ups in the form of limited liability companies (s.r.l.).  

Such issues, only touched on in this notes, will be examined in depth, along with other aspects of interest raised by the new legislation in question, by an ad hoc working team made up of resources from the Corporate & Commercial Department and the Mergers & Acquisitions Department, and the relevant results will be illustrated in specific notes dispatched after this one, mostly on a monthly basis.

  1. Foreword – A potentially revolutionary innovation

As a result of the entry into force of the Directorial Decree issued by the Italian Ministry of Economic Development (“MISE”) on 1 July 2016 (the “Directorial Decree”), approving the technical specifications for the electronic model of articles of association and by-laws[1] for innovative start-ups incorporated as limited liability companies (s.r.l.), from 20 July 2016 the platform startup.registroimprese.it is operational and allows the incorporation of start-ups in the form of limited liability companies (s.r.l.) in full autonomy and with no need for resort to a notary.

Indeed, to initiate one’s own start-up in the form of a limited liability company (s.r.l.) all that is now needed is to: (i) have a PC connected to the Internet, a certified e-mail address that is unambiguously referred to the start-up being incorporated([2]) and a digital signature device for each subscriber; (ii) connect to the platform; (iii) fill in the fields of the articles of association and by-laws available in the section “Create your Start-up” of the platform and compliant with the standard electronic models set out in ministerial decree of 17 February 2016 (the “Ministerial Decree”); and finally (iv) register with Telemaco to transmit the Single Communication file to the competent Companies’ Register. The on-line service is free of charge.

Despite the fact that the electronic incorporation of innovative start-ups in the form of limited liability companies (s.r.l.) using the digital signature originally introduced by the so-called “Investment Compact Decree” (Decree Law no. 3/2015, Article 4, paragraph 10 bis) represents an alternative procedure to the classic procedure by public deed – which in any event still remains in force and is still governed by the Italian Civil Code, by the Law on Notaries and by the other system rules – the gratuitousness, usability, rapidity and autonomy that apparently characterize the new incorporation procedure are so potentially attractive for startuppers, by definition not too pushed on bureaucracy and with limited economic resources, that the systematic resort to law experts may from now one become an option definitely on the decline.

If one considers that the possibility to incorporate a company on-line, presently limited to the microcosm of innovative start-ups incorporated in the form of limited liability companies (s.r.l.), could be extended in the future to the incorporation of other types of companies, the innovation described herein is likely to have revolutionary repercussions.

However, it should be pointed out that, at present, the filling in of the standard models of articles of association and corporate by-laws is not easy or user-friendly especially for operators without a minimum knowledge of corporate law.

In particular, unlike the previous models of articles of association and by-laws of the so-called “simplified limited liability companies (s.r.l.)” already approved by Ministerial Decree no. 138 of 23 June 2012, the model of corporate by-laws approved by the MISE is not an easy to use document but it is a complex document, structured in sections and boxes corresponding to the different clauses of the by-laws that generally offer two or more alternative options leading to as many different consequences in terms of governance of the company being incorporated and of circulation of the relevant holdings.

Such complexities are exacerbated by the fact that, at present, the platform has no information windows that the user can activate to obtain instructions or clarifications with regard to the different choices that the same must make in full autonomy.

Moreover, although the required compliance of articles of association and corporate by-laws of start-ups being incorporated in the form of limited liability companies (s.r.l.) with the models approved by the MISE should represent a source of security for the operator, it is necessary to highlight that the normative model of corporate by-laws approved by decree of 17 February 2016 apparently shows certain interpretation and application difficulties, some of which are only briefly mentioned in the following paragraphs and will be examined in depth in subsequent notes as mentioned above.

  1. Issues concerning the ministerial model of articles of association and corporate by-laws

2.1        Interpretation doubts on preventive control of articles of association and by-laws

Article 4, paragraph 10-bis of the so-called “Investment Compact Decree” (i.e. Decree Law no. 3 of 2015) has – on the one hand – removed the obligation to resort to a notary for the stipulation (and subsequent amendments) of the articles of association relating to innovative start-ups incorporated as limited liability companies (s.r.l.) and – on the other hand – introduced the possibility, as alternative choice to the traditional procedure, to stipulate said deeds (rather than by public deed) through an electronic document executed by digital signature according to the modalities laid down in articles 20 and the following of the e-Government Code (“eGC”) on the basis of a standard model of articles of association and corporate by-laws whose preparation was entrusted to the  Minister of Economic Development.

The Community guidelines in force on incorporation of limited companies provide that “in all Member States whose laws do not provide for preventive, administrative or judicial control, at the time of formation of a company, the instrument of constitution, the company statutes and any amendments to those documents shall be drawn up and certified in due legal form”([3]).

So, the first question posed in the light of the new legislation is whether the ministerial pre-approval of a model of by-laws editable (even if to a minor extent) by subscribers may actually replace the notary’s control and hence be considered as the preventive administrative control provided for by the EC legislation.

2.2        Limits to the inviolability of the ministerial model of articles of association and corporate by-laws

Another interesting question that will be subject to in-depth examination concerns the limits within which the ministerial models of articles of association and corporate by-laws provided for the on-line incorporation of innovative start-ups in the form of limited liability companies (s.r.l.) may be derogated by a notary in case the innovative start-up is incorporated by public deed.

Indeed, the joint provisions of Article 4, paragraph 10-bis, of Decree Law no. 3 of 24 January 2015, converted into law no. 33 of 2015, and of Article 1, paragraph 1, of the Ministerial Decree, establish that the articles of association and the corporate by-laws (as subsequently amended) of innovative start-ups incorporated in the forms of limited liability companies may be drawn up by public deed, or by deed executed with the procedures provided for by Article 24 of the digital administration code, in full compliance with the uniform format prepared by the MISE.

In case the on-line incorporation of the company is chosen, the compliance of the electronic document with the ministerial model is an essential requirement for the temporary registration of the start-up in the ordinary section of the Companies’ Register (such registration is preliminary to the one in the special section dedicated to innovative start-ups) and is subject to verification by the Companies’ Registry office.

Also subsequent amendments to the by-laws initially adopted by innovative start-ups in the form of limited liability companies (s.r.l.), if made on-line, shall be consistent with the template of the model of by-laws approved by the MISE. Indeed, the technical procedures to fill in the models do not allow, either upon the incorporation of the company or when amending the by-laws, to make variations to the electronic document approved by the MISE.

What would happen instead if the startupper chose to resort to the advice and experience of a notary for the incorporation of the company and/or for possible amendments to the corporate by-laws following the incorporation?

Would the notary too be bound to the template approved by the Ministry, or would the notary (as entity exercising, by law, the control on the legality and legitimacy of public deeds) be free to draw up such deeds on the basis of his/her own drafting criteria possibly different from the provisions of the ministerial template?

In such latter event, the legislation under examination could not assure an identical treatment to all innovative start-ups given that, in theory, start-ups with substantially different articles of association and by-laws may be registered in the special section of the Companies’ Register (and hence benefit of the same special legislation[4]) with the exception, of course, of the provisions of the by-laws relating to registered office, corporate object and destination of profits, which, in order for the newly incorporated company to access the benefits granted to innovative start-ups, shall have to necessarily comply with the legislative provisions irrespective of the drafting choices made by the notary.

  • Preliminary remarks on the ministerial model of corporate by-laws

The idea of by-laws pre-approved by the Ministry of Economic Development seems, in itself, highly innovative; even more so if one considers that the possibility to incorporate a company through an electronic document reproducing a ministerial model, now contemplated only for innovative start-ups incorporated in the form of limited liability companies (s.r.l.) may be extended in the future to other types of companies.

The introduction of a ministerial model of by-laws – in theory correct by definition, having been prepared and approved by a Ministry – may, therefore, represent a new fundamental point of reference for all those drawing up by-laws, especially with regard to those solutions and relevant by-laws provisions on which legal practitioners have raised, over time, interpretation and/or application doubts.

As anticipated, the platform provides the user with a model of articles of association and of by-laws that are rather articulated and need to be filled in with due care and skill.

Indeed, such models provide a series of boxes, each corresponding to a different by-laws provision, some compulsory and some others discretionary, and requiring the selection of various options, even rather sophisticated and complex, among which, by way of example only: the possibility to resort to credit instruments and participating financial instruments, the possibility to award quotas with particular rights, special regulations on the circulation of quotas in case of companies with more members (e.g. pre-emption right, approval clauses, prohibition to assign holdings, tag-along rights and drag-along rights, etc.), cases of voluntary exercise of the right  of withdrawal by a member, etc.

However, a first reading of the ministerial model of by-laws shows that such document, although elaborate and a potential source of very interesting solutions from the corporate law point of view, presents as well some problems that shall have to be necessarily examined in depth by legal practitioners.

By way of example, some doubts raised on a first detail of the ministerial format concern the free determination of certain terms contemplated by the provisions of the corporate by-laws, without the possibility to restrict the “creativity” of founding members within pre-determined time frames based on rational legal criteria.

Also the ways in which the drag-along clause and the tag-along clause – both optional for startuppers – have been drawn up in the ministerial model of corporate by-laws have particularly interesting features.

Such aspects concerning contents and drafting methods of the model of corporate by-laws pre-approved by the Ministry will be subject to further in-depth analysis and subsequent notes.

  1. Further points worth consideration originating from the legislation on on-line incorporation of start-ups in the form of limited liability companies (s.r.l.)

3.1        Implied derogations on incorporation of ordinary limited liability companies (s.r.l.)

Still with regard to the formalities provided for by the Italian Civil Code for the incorporation of limited companies, the Ministerial Decree – introducing the possibility to incorporate on-line an innovative start-up on the terms illustrated above – has apparently introduced certain indirect derogations from the provisions of the Italian Civil Code governing the incorporation of ordinary limited liability companies.

Even such aspects will be the subject-matter of an ad hoc note illustrating the conclusions reached by the dedicated working group upon completion of its in-depth analysis.

3.2        Possible legislative gaps on “simplified” incorporation of innovative start-ups

The legislation on innovative start-ups seems to have possible gaps that it will be worth examining in-depth in future communications.

By way of example, it is interesting to notice that the legislative regulation contains no express indication of the time when an innovative start-up in the form of limited liability company (s.r.l.), whether incorporated on-line or by public deed, acquires legal status.

Pursuant to Article 2331 of the Italian Civil Code, applicable also to limited liability companies, a company acquires legal status when it is registered in the Companies’ Register.

As far as innovative start-ups incorporated in the form of limited liability companies (s.r.l.) are concerned, it is established that the Companies’ Register shall first make a temporary registration in the ordinary section and then the registration in the innovative start-ups special section, but there is no specific indication as to which of the two registrations causes the acquisition of legal status.

It is clear that such uncertainty may have evident repercussions on the legal regime applicable with reference to the actions carried out, in the name of the company, during the period of temporary registration in the ordinary section of the competent Companies’ Register.

Given its relevance, this issue will be examined in-depth by the dedicated working group and will be the subject-matter of an ad hoc note.

 

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For the sake of clarity, please note that the content hereof is for mere information purposes and is not, and cannot be interpreted as, a professional opinion on the topics dealt with.

[1] It is interesting to notice that for the on-line incorporation of innovative start-ups in the form of limited liability companies (s.r.l.), the MISE has chosen to provide both a model of articles of association and a model of by-laws. Indeed, Article 2463 of the Italian Civil Code requires a single document for the incorporation of limited liability companies (s.r.l.): the articles of association, which must include not only the minimum necessary content that identifies the characteristics of the company, but also the rules concerning both the operation and organisation of the same. However, in normal practice, the contract for the setting up of a limited liability company (s.r.l.) is often made up of two documents, the articles of association and the by-laws, as provided for by Article 2328 of the Italian Civil Code for the incorporation of joint stock companies (s.p.a.).

[2] In such regard it should be specified that the certified e-mail (PEC) address may be issued by the provider even before the incorporation of the company. Indeed it is necessary to distinguish “generation” form “activation” of the certified e-mail. In fact, the provider generates a certified e-mail address with the data and documents (ID, Italian fiscal code) alone of the applicant/future legal representative of the company being incorporated. Such certified e-mail address will be communicated to the Chamber of Commerce and will then allow the incorporation of the company. Instead, the activation of the certified e-mail is conditional upon the communication by the newly incorporated company to the provider of the VAT number issued by the Chamber of Commerce after the incorporation.

([3]) Article 11 of Directive 2009/101/EC of the European Parliament and of the Council

([4]) Benefits granted to innovative start-ups include, among other things: exemption from Chamber of Commerce fees and from stamp duties; flexible corporate management that brings limited liability companies (s.r.l.) closer to joint stock company (s.p.a.); easy terms for the coverage of losses; inapplicability of the rules on shell companies; easier offsetting of VAT; customized labour regulations; dynamic salaries; possibility to remunerate workers and external consultants with stock options and work for equity not falling in the taxable income; tax credit for the hiring of skilled personnel; tax incentives for those investing in innovative start-ups, equity crowdfunding; fast-track access to the “Fondo di Garanzia per le PMI” (i.e. the Italian guarantee fund for SMEs); non application of ordinary bankruptcy rules; ad hoc services provided by the Italian Trade Agency (ICE) for the internationalisation of enterprises; easy terms loans; facilitated procedure for non-EU entrepreneurs intending to start an innovative  start-up in Italy.

20/09/2016

On 20 July 2016, the incorporation of innovative start-ups in the form of limited liability companies (“società a responsabilità limitata” (s.r.l.)) through the execution of an electronic document with digital signature (and the consequent exclusion of the compulsory resort to a notary) has become reality.

The Italian Ministry of Economic Development (“MISE”) has approved by directorial decree of 1 July 2016 (whose provisions have entered into force effective as of 20 July 2016) the technical specifications for the electronic model of articles of association and by-laws relating to start-ups incorporated as limited liability companies (s.r.l.).

  1. Foreword – regulations on innovative start-ups incorporated as limited liability companies (s.r.l.)

The on-line incorporation of innovative start-ups in the form of limited liability companies (s.r.l.) without the intervention of a notary represents, nowadays, a real newness.

Indeed, by directorial decree of 1 July 2016 the Italian Ministry of Economic Development (“MISE”) has approved the technical specifications for the structure of the electronic model of articles of association and by-laws of innovative start-ups incorporated as limited liability companies (s.r.l.), marking a further step in the process of regulatory promotion of innovative enterprises started with Decree Law no. 179 of 2012 that introduced for the first time in our legislation the innovative start-up institution.

The development of the regulations concerning innovative start-ups continued with Decree Law no. 3 of 2015; indeed, article 4, paragraph 10-bis of such Decree Law – on the one hand – abolished the obligation to resort to a notary for the stipulation (and subsequent amendments) of the articles of association relating to innovative start-ups incorporated as limited liability companies (s.r.l.) and – on the other hand – introduced the possibility, as alternative choice, to stipulate said deed (rather than by public deed) through an electronic document executed by digital signature according to the modalities laid down in articles 20 and the following of the e-Government Code (“eGC”) on the basis of a standard model of articles of association and corporate by-laws whose preparation was entrusted to the  Minister of Economic Development.

By decree of 17 February 2016 (“Ministerial Decree”), the Minister drew up the standard model of articles of association and corporate by-laws of innovative start-ups incorporated as limited liability companies (s.r.l.) referred to in the aforesaid article 4, paragraph 10-bis of Decree Law 3/2015, delegating however to the MISE the promulgation of a further decree approving the technical specifications for the electronic compiling, stipulation and filing of the articles of association and of the relevant by-laws.

In compliance with the Minister’s direction, on 1 July 2016 the MISE issued a directorial decree (“Directorial Decree”), effective as from 20 July 2016, whereby it established the aforesaid technical specifications to be complied with by software programs that may be used in the process of simplified incorporation of innovative start-ups incorporated as limited liability companies (s.r.l.).

Moreover, simultaneously with the Directorial Decree, the MISE issued circular no. 3691/C whereby it provided the Chambers of Commerce with specific instructions and clarifications on the new procedure for the compiling, stipulation and filing of articles of associations and relevant corporate by-laws of innovative start-ups incorporated as limited liability companies (s.r.l.)([1]).

  1. Simplified incorporation procedure: applicability framework

Very briefly, article 25 of Decree Law 179/2012 considers as innovative start-ups (that may, therefore, benefit from the relevant advantages on capitalisation, corporate governance, tax incentives, access to bank lending, etc.) joint stock companies, including those incorporated as cooperatives, residing in Italy or in another Member State of the EU provided that they have one production site or branch in Italy, whose exclusive or prevailing corporate object is the development, production and marketing of innovative products or services having a high technological value and meeting the further minimum requirements provided for by Law Decree 179/2012 (by way of example with reference to composition of the holding structure, incorporation methods, turnover amount, percentage of production costs dedicated to research and development activities, employment of highly-skilled personnel in research and scientific activities, ownership of industrial property rights, etc.).

Although the definition of innovative start-up under article 25 of Decree law 179/2012 makes reference, as to company form, to all joint stock companies (including those incorporated as cooperatives), the Ministerial Decree gave greater priority to the elaboration of a standard model of articles of association and relevant by-laws only with regard to innovative start-ups incorporated as non-simplified limited liability companies (s.r.l.) owing to their large number (nowadays they represents approximately 80% of the start-ups registered in the relevant special section of the chambers of commerce), as well as to the particularly favourable regime that Decree Law 179/2012 reserves exclusively to such type of start-ups (which includes the regulation relating to the different classes of shares, the possibility to carry out transactions on treasury shares, the possibility to issue participating financial instruments, the possibility to make recourse to the so-called equity crowdfunding).

  1. Simplified incorporation procedure: fulfilments and formalities

The Directorial Decree of 1 July 2016 provides for a detailed legislation concerning the procedure and formalities required for the incorporation of an innovative start-up in the form of limited liability company (s.r.l.) through an electronic process based on digital signature, specifying, in particular, the modalities for the drafting of the relevant articles of associations and by-laws, the registration of the incorporation deeds, the temporary registration in the ordinary section of the companies’ register, the registration in the special section dedicated to innovative start-ups and the relevant anti-money laundering verifications.

3.1        Model of articles of association and by-laws

The articles of association and by-laws of innovative start-ups incorporated as limited liability companies (s.r.l.) must be drafted in compliance with the relevant standard model attached to the Ministerial Decree of 17 February 2016, in electronic form and executed by digital signature pursuant to Article 24 of the eGC by each of the relevant subscribers, in case of multi-person companies([2]), or by the sole subscriber in case of single-member company, by using the dedicated web platform startup.registroimprese.it (hereinafter the “platform”).

In particular, the platform makes available to the user a model of articles of association and of by-laws rather complete and complex which must be filled-in with appropriate care and expertise; indeed, such models provide for a number of pre-selected boxes each containing a specific clause, some of which mandatory, some others optional, which provide for different selectable options.

In this respect, it should be noted that the model of by-laws provided by the Ministerial Decree contains a number of clauses selectable by the user in order to govern aspects, even rather complex, concerning the operation of the company, such as by way of example: the possibility to make recourse to participating financial instruments, the possibility to issue quotas with special rights, limits to the circulation of quotas in case of multi-person companies (e.g. pre-emption right, right of refusal, lock-up, tag-along right and drag-along clauses etc.), circumstances of voluntary exercise of withdrawal right, etc.

3.2        Formalities concerning the registration of incorporation deeds

As concerns tax related formalities connected with the incorporation process of innovative start-ups in the form of limited liability company (s.r.l.), since it is not yet possible to pay taxes due in connection with the incorporation deeds by self-assessment (“auto-liquidazione”), in order for the company to be enrolled in the competent companies’ register it will be necessary to first register the relevant incorporation deed for tax purposes through the “registration” function available on the platform.

The platform shall then transmit to the competent office of the Italian revenue agency, by means of certified e-mail (“PEC”), the articles of association and the relevant by-laws executed as specified above, as well as any other ancillary documents and the relevant payment receipt issued upon registration of the deed completed as above.

Thereafter, the Italian revenue agency will transmit, in its turn, to the user the details of the relevant registration.

Once the registration is completed, the articles of association and the relevant by-laws, with the relevant registration details, will be transmitted, through a single communication file (“pratica di comunicazione unica”) to the relevant companies’ register competent on a territorial basis.

3.3        Temporary registration with the ordinary section of the companies’ register and registration in the special section

According to the regulations, together with the application form for the registration with the companies’ register, the user has to file an application for the registration of the company in the special section of the companies’ register dedicated to innovative start-ups.

In this respect, it should be taken into account that the procedure for the registration of the company in the special section is subject to its prior temporary registration in the ordinary section of the companies’ register competent on a territorial basis.

Once the registration application has been received in accordance with the terms briefly described in paragraph 3.2, the companies’ register will automatically register the file and start the verifications required for such purposes under article 2, paragraph 2 of the Ministerial Decree, which include, among others, verifications with respect to:

  • compliance of the articles of association and the corporate by-laws with the regulatory models;
  • execution with digital signature by all subscribers within the established deadline;
  • existence of all the requirements needed for the application of the regulations on innovative start-ups;
  • legal capacity of the subscribers;
  • compliance with the regulations on the protection of blind, low vision, deaf, deaf and dumb contacting parties or foreign contracting parties who do not understand the Italian language;
  • observance of the provisions of article 2343 of the Italian civil code on subscription of corporate capital by contributions in kind;
  • administrative verifications provided for by article 11 of Directive no. 2009/101/EC (on safeguards for the protection of members or third parties);
  • fulfilment of the obligations relating to anti-money laundering.

With respect to anti-money laundering, it is interesting to see how the Directorial Decree has entrusted, for the first time, the competent offices of the companies register with the carrying out verifications (i.e. anti-money laundering verifications pursuant to Legislative Decree no. 231/2007) which so far were not falling within the competence of such offices.

In case the abovementioned verifications produce satisfactory results, the companies’ register office shall, within 10 days from the date of registration of the filing of the registration application, register the company in the ordinary section of the companies’ register, with the additional caption “start-up incorporated under article 4, paragraph 10-bis of Decree Law no. 3 of 24 January 2015, temporarily registered in the ordinary section, registration in the special section pending”.

Upon final registration in the special section, the office will automatically remove the caption “temporarily registered in the ordinary section, registration in the special section pending”.

On the contrary, should formal irregularities emerge, the companies’ register office shall have to suspend the procedure for the registration and grant all subscribers, by means of certified e-mail, an appropriate term no longer than 15 days in order to remedy such irregularities.

Should such irregularities not be remedied within the designated deadline, the keeper of the companies’ register, by means of reasoned decision, will reject the registration of the company in the ordinary section of the companies’ register.

Subscribers may file within 8 days an appeal with the Judge of the companies’ register, who will decide according to article 2189 of the Italian Civil Code.

Once the company has been temporarily registered in the ordinary section of the companies’ register and subject to satisfactory results produced by further verifications concerning the status of innovative start-up, the office will automatically register the company in the special section of the companies’ register dedicated to “innovative start-ups” according to the standard procedure set out in article 25 of Decree Law no. 179/2012(3)

In this regard, it should be noted that failure to register the company in the special section implies the automatic exclusion of the company also from the ordinary section of the companies’ register pursuant to article 2189 of the Italian Civil Code, and, thus, the complete cancellation of the company from the companies’ register.

 

 

 

 

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The content hereof is for mere information purposes only and is not, and cannot be interpreted as, a professional opinion on the topics dealt with.

(1) For the sake of clarity it is necessary to remind that the electronic incorporation with digital signature of an innovative start-up in the form of limited liability company (s.r.l.) introduced by article 4, paragraph 10-bis of Decree Law 3/2105 represents an alternative to the classic procedure of incorporation by public deed, which in any event shall continue to remain in force and be governed by the Italian civil code, by the notaries act and by the other system rules.

(2) Pursuant to Article 1, fourth paragraph, of the Ministerial Decree in case of multi-person incorporation, the execution procedure must be completed within 10 days from the execution by the first subscriber.

 

(3) The innovative start-up is automatically registered in the special section of the companies’ register as a result of the compiling and filing of the application in electronic form including the following information: a) date and place of incorporation; b) head office and branches; c) corporate object; d) short description of the activity carried out by the company, including research and development activities and expenses; e) list of members, with transparency as to trust companies or holding companies, by means of self-executed affidavit of accuracy; f) list of associated companies; g) educational and professional qualifications of the members and of personnel working in the innovative start-up, with the exception of any personal data; h) professional or commercial relationship with certified incubators, professional and institutional investors, universities and research centres; i) latest financial statements filed, in XBRL standard; l) list of industrial and intellectual property rights.

16/03/2017

Nctm Studio Legale advised BT Enìa Telecomunicazioni S.p.A., a company controlled by BT Italia S.p.A., in the purchase of a line of business relating to a telecommunication network extending for approx. 1,500 km in Emilia Romagna belonging to IRETI S.p.A. (a company of the IREN Group engaged in the field of public local grid services), which was advised by Studio Bettini Formigaro Pericu.

At the same time, an agreement was entered into between BT Enìa and IRETI, whereby the latter was granted the right to use, for a period of 30 years, renewable by further 10 years, 25% of the overall capacity of the purchased network; furthermore BT Enìa entered into an agreement with IREN Energia S.p.A. (another company of the IREN Group) whereby IREN Energia granted BT Enìa the right to use 25% of the physical space existing inside all service cable ducts of the district heating network owned by IREN Energia, for a period of 30 years, renewable by further 10 years .

In this issue, we explore the new “Project Review” rule provided for by Article 202 of Italian Legislative Decree No. 50/2016, which allows the State to revoke funding previously granted for projects which – upon later and more in-depth review – are found no longer to meet the cost benefit ratio. What will the impact of this new rule be on port infrastructure projects in Italy? Are we at the beginning of a new era? We come back to the Italian port reform issue, this time to examine the ordinance power vested in the President of the Port System Authority. Analysing a judgment of the Regional Administrative Court of Liguria, we note how case law anticipated the reform when recognising the ordinance power of the President of the Port Authority even in the absence of an express statutory provision. We then deal with the need for prior review by the EU Commission of State funding projects involving upgrade works on EU ports. On 23 January 2017 the new EU Regulation on port governance was approved. We give a first insight on the main issues covered by the Regulation: financial transparency and the provision of port services. We examine the request to amend Directive 2009/13/EC, aimed at delivering better working conditions to seafarers in accordance with the amendments made in 2014 to the Maritime Labour Convention (MLC / 2014). We also provide some updates on maritime employment agencies. We then focus on a recent decision of the European Commission on State aid, which further helps improve the general understanding of the criteria to be met in order for State aid in port and airport matters to be deemed compatible with EU law. Finally, we draw our attention to an interesting decision of the Consiglio di Stato regarding the interruption of airport handling services, which is forbidden when deemed detrimental to the public interest in operation of scheduled air transport services.] We want to thank our colleagues at Nctm Brussels’s office for their contributions highlighting the most significant actions taken by EU institutions in the international shipping and trade sector. You will also find a list of our events taking place at our Milan and Rome offices, in addition to the usual update on our firm’s activities over the past two months.

As we settle into 2017 the drama of Brexit and Trump seem to have eased somewhat. While the drama might have lifted it doesn’t mean that the complexities that these two phenomena have introduced and are introducing into the practice of law have gone away. In fact, the more we reflect on what needs to be done to achieve Brexit the less clear the situation is. This week President Trump will outline what he means by the Wall and taxes on imports of goods. From a WTO law point of view it can only be disruptive and even destructive. The drama might have gone but the work is only beginning. In this issue we have a range of contributions covering how the Russian constitutional court has reacted to the European Court of Human Rights rulings in favour of the owners of Yukos, the OECD’s review of its own bribery rules, the EU’s new proposed ePrivacy Regulation, how the European Court of Auditors confirms our understanding of the responsibilities and obligations of Port Authorities in relation to concessionaires. We explain the new Italian Save the Banks decree and show how the EU Commission has a strong role in every step of the process and look at how the Commission proposes disciplining insurance distribution agents.

Trade features significantly in this first edition of Across the EUniverse for the year 2017. It cannot be otherwise. US President Trump has said that he will change US trade policy building barriers to market access and forcing US companies to manufacture at home. China President Xi has said that China promotes barrier free trade so long as the barriers are in third countries (not in China). The EU is in the process of reforming its trade defence instruments and digesting how a post Brexit world will look.

 

This change in trade is evidence of wider change that is taking place around us and which is likely to continue into 2017. There will be federal elections in Germany and national elections in France. If Italy gets to change its electoral law there may well be an election in Italy. Will the forces that backed President Trump in the US win in the EU as well. The country most likely to change is the Netherlands, once a bastion of openness but now toying with the idea of giving the most votes to an anti-Islam party.

 

In this issue we look at the legal debate concerning an Italian exit from the Euro; a comparison between Trump and Xi approach on the concept of trade; some consequences of the excessive length of court proceeding; we also examine the advantages of the new italian “rent to buy” agreement; as well as the Multilateral Investment Court; an overview of the service sector; a further examination of the trade consequences of Brexit and finally the advantages or disadvantages of enhancing the bilateral framework between EU and US in the field of energy.

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