Articles of incorporation and bylaws (under Italian Law)

Definition and content

Article 2328 of the Italian Civil Code introduces a distinction between articles of incorporation and by-laws.

In particular, the articles of incorporation contain the manifestation of will relating to the constitution of the company and the fundamental provisions of its organizational structure. They must be drawn up by notarial deed (Art. 2328(2) of the Civil Code).

Paragraph 2 of Art. 2328 then provides for the content of the articles of incorporation, which must indicate:

1) the surname and first name or name, date and place of birth or state of incorporation, domicile or registered office, citizenship of the shareholders and any promoters, as well as the number of shares allocated to each of them;

2) the name and municipality where the company's registered office and any secondary offices are located;

3) the activity that constitutes the object of the company;

4) the amount of the subscribed and paid-up capital;

(5) the number and nominal value, if any, of the shares, their characteristics and the manner of their issue and circulation;

6) the value attributed to receivables and assets transferred in kind;

7) the rules according to which profits are to be distributed;

8) the benefits, if any, granted to the promoters or founding members;

9) the system of administration adopted, the number of directors and their powers, indicating which of them shall represent the company;

10) the number of members of the board of auditors;

11) the appointment of the first directors and statutory auditors or the members of the supervisory board and, where applicable, the person appointed to perform the statutory audit of the accounts;

12) the total amount, at least approximately, of the formation expenses charged to the company;

13) the duration of the company or, if the company is incorporated for an indefinite period of time, the period of time, in any event not exceeding one year, after which the shareholder may withdraw.

It should be noted that, although in practice the content of the articles of incorporation is broader and more articulate than the minimum required by law, not all the indications are essential. Moreover, only the absence of any indication as to the name of the company, the contributions, the amount of the share capital or the object of the company entails the nullity of the articles of incorporation pursuant to Article 2332 of the Civil Code.

The last paragraph of Art. 2328, on the other hand, regulates the by-laws, i.e. the document containing the rules relating to the functioning of the company. The rule provides that even if it is contained in a separate deed, it constitutes an integral part of the articles of incorporation. It is therefore generally agreed that the by-laws must also be drawn up by public deed. In the event of a conflict between the provisions of the articles of incorporation and those of the by-laws, the latter shall prevail.

Amendments to the articles of incorporation

Amendments to the articles of incorporation are subject to special rules, contained in Articles 2436 et seq. of the Civil Code. It should be noted that amendments to the articles of incorporation may have the most diverse content, as they may affect the company’s organizational structure in various ways. However, the regulation to all amendments to the articles of incorporation is very meagre: it is limited to the regulation of the procedure. On the other hand, the law lays down specific rules for certain particular amendments to the articles of incorporation, such as increases and reductions in share capital.

As far as the procedure is concerned, under Article 2436 of the Italian Civil Code, the shareholders' resolution to amend the by-laws, which is the responsibility of the extraordinary shareholders' meeting pursuant to Article 2365 of the Italian Civil Code, must be recorded in the minutes by a notary public, who, within thirty days, after verifying the fulfillment of the conditions set forth by law, must request registration in the business registry at the time of filing. The business registry office, having verified the formal regularity of the documentation, must enter the resolution in the registry. The effects of the resolution are produced by the registration.

In order to make the content of the statutes easier to understand, the full text of the articles of incorporation and by-laws, as amended, must be filed with the register after each amendment.

The articles of incorporation of a limited liability company

The provisions on the limited liability company do not mention the word 'by-laws', but always refer to the term 'articles of incorporation' and the expression 'rules relating to the functioning of the company'. Although the rules do not require the drawing up of two separate documents for the drafting of the limited liability company, but instead suggest that the articles of incorporation must themselves contain the rules of the company's by-laws, notarial practice applies by analogy the provisions on limited liability companies and thus inserts the clauses on the operation of the limited liability company into the by-laws, understood in the formal sense as a document annexed to the articles of incorporation and containing the rules of the company's relationship that are not transitory in nature. The articles of incorporation of a limited liability company must also be drawn up by notarial deed and must contain the particulars set out in Article 2463 of the Civil Code.

The Decree of 26 July 2022, no. 155 of the Ministry of Economic Development (containing the "Regulation on the definition of the models of the articles of incorporation of limited liability companies having their registered office in Italy and whose capital is paid up by means of cash contributions") provided for the possibility that the deeds of incorporation in question may be received by the notary public by means of a public electronic deed, with the participation by videoconference of the requesting parties or some of them, through the use of a telematic platform prepared and managed by the National Council of Notaries, also using the uniform standard models approved by the Minister. For further details see this page. Standard models are available at this site.

References

G. F. Campobasso, Diritto commerciale, 2, Diritto delle società, 10° ed., Utet Giuridica, Milano, 2020, p. 149 et seq., 493 et seq. and 564 et seq.;

F. Galgano, Diritto commerciale. Le società, 18° ed., Zanichelli, Bologna, 2013, p. 171 et seq. e 389 et seq.;

G. Meruzzi, Complemento di diritto commerciale, 1, Impresa, società in generale e società di persone, 2° ed., Egea, Milano, 2019, p. 35 et seq.;

G. Migliorati, Atto costitutivo di s.r.l., in Ilsocietario.it, 8 May 2019;

G. M. Nigro, La costituzione online di srl e di srls: le novità del decreto all’esame del Parlamento, 15 October 2021, available here.