Law Decree no 1/2012, also known as the Liberalization Decree, was finally converted into Law (Law 27/2012) by the Italian Lower House (Camera dei Deputati) on March 22, 2012.
In this article, we analyze once again the new type of Italian Limited Liability Companies (SSRLs), provided for under the amended article 2463-bis of the Italian Civil Code (hereafter c.c.) and, in particular, the amendments which have been introduced during the course of the aforementioned Law-Decree’s conversion into ordinary law.
In the first place, SSRLs cannot be incorporated by means of a private deed, but must be incorporated by means of a public deed (thus implying the involvement of a Notary Public in drafting such deed), in accordance with the standard model which shall be contained in the Decree to be issued by the Italian Minister of Justice within sixty days from the aforementioned ordinary law coming into force.
In any case, article 2463-bis paragraph 3 c.c. now provides that the SSRL’s deed of incorporation and the registration thereof in the companies register shall be tax-free and no notarial fee shall be due.
It is not clear, however, whether a new liability company consisting in a sole shareholder may be incorporated, as seemed to be the case under the previous wording of the aforementioned Law Decree.
Some authoritative authors, in the light of the fact that article 2463-bis, paragraph 1 c.c. specifically provides that new limited liability companies may be incorporated upon an agreement or unilateral act being executed by natural persons, are of the opinion that this new type of company cannot be incorporated by a sole natural person.
Other authors are of the opinion, on the other hand, that, in the light of the fact that anything not provided for under the above-described law shall be governed by the provisions on traditional limited liability companies, a sole natural person may still incorporate an SSRL.
We substantially agree with this last point of view: Article 2462, paragraph 2 c.c. (which refers to traditional limited liability companies) states that – in the event that there is a sole shareholder – he will not have an unlimited liability for the debts arising in such a period, provided that: a) the share capital is fully paid up (article 2464 last paragraph c.c.); b) the directors have filed in the Companies’ Register a declaration containing the identifying data of the sole shareholder (article 2470, paragraph 4 c.c.).
Moreover, in the original wording of the Law-Decree, the eventuality that there was a sole shareholder in the SSRL was expressly provided for. The Decree, in fact, provided that, in the event the sole shareholder or all the shareholders no longer possessed the legal requisites for continuing to be SSRL shareholders (i.e. they were no longer thirty years’ old), the company had to be transformed into a traditional limited liability company or be dissolved.
Even though the above-described mentioned provision does not appear in the conversion law, we are of the opinion that the legislator did not intend to forbid a sole natural person from incorporating an SSRL.
The true question is, in this case, how to determine what happens when the sole shareholder becomes thirty years’ old, given that the new article 2643-bis has foreseen nothing for this eventuality.
If a sole natural person wants, therefore, to incorporate a new liability company without being personally liable for debts, he must fully pay in the share capital (which may vary between 1 and 10,000 euros) and comply with provision set forth under article 2470, last paragraph c.c. with reference to the need to communicate his or her identifying data to the Companies’ Register.
