The Law Decree nr. 91 dated June 24th 2014 (known also as "competitiveness decree"), enforced on June 25th, has been converted with modifications in the Law nr. 116 dated August 8th 2014, enforced on August 21th 2014.
With this Update we analyse the most important changes made to the corporate shares and share capital rules.
2 THE MINIMUM SHARE CAPITAL FOR PUBLIC LIMITED COMPANIES (S.P.A.)
In order to incorporate a Public Limited Company (in Italian Società per Azioni or S.p.A.) the minimum share capital has been decreased from Euro 120.000,00 to Euro 50.000,00.
2.1 Effective date
The new minimum amount for the share capital is effective starting from June 25th 2014.
2.2 Main consequences of the new minimum amount
The decrease of the minimum share capital for Public Limited Companies has important consequences with relation to:
- The amounts of payments at the moment of the incorporation of the company;
- The re-capitalization of the company if and when needed;
- The voluntary reduction of the share capital.
2.2.1 The amounts of payments at the moment of the incorporation of the company
In case of incorporation of a SpA with minimum share capital (today equal to Euro 50.000,00) and payment entirely made with cash, payments to be made (according to article 2342, paragraph 2 of the Italian Civil Code at least 25% of the minimum share capital), in case of multiple shareholders decrease from Euro 30.000,00 to Euro 12.500,00.
This only in case of two or more shareholders. In case of SpA with just one shareholders, in fact, the same article obliges to pay the entire minimum share capital of Euro 50.000,00.
This value, moreover, has also to be considered in case of payments made with assets (under article 2342, paragraph 3): shares corresponding to those payments have to be entirely free at the moment of their subscription.
2.2.2 Consequences in case of relevant losses
With regard to reflections that these news have in case of relevant losses, we underline how, under article 2447, if, for losses exceeding 1/3 of the share capital, this one is reduced under the minimum level set by article 2327, that is, starting from June 25th 2014, Euro 50.000,00, the Directors of the company have to summon the General Meeting of the shareholders to resolve on:
- The decrease of the share capital and the simultaneous increase to the minimum level;
- Or the transformation of the company into a Srl or a Limited Liability Company.
2.2.3 Consequences on the voluntary decrease of the share capital
The decrease of the minimum share capital to Euro 50.000,00 impact also on the potential decision of voluntarily reducing the share capital.
Under article 2445, paragraph 2, in fact, the voluntary reduction of the corporate share capital can happen through the relief of the shareholders to make payments still due, and through the refund of the share capital to shareholders, within the limits set by article 2327, that is to the minimum level of Euro 50.000,00 (in addition article 2413 obliges to verify the limits set for the ratio needed between share capital, legal and available reserves and bonds issued by the company).
2.3 Minimum share capital for the SapA (Società in accomandita per azioni)
The new minimum level is applied also to SapA, since article 2454 makes reference, for these type of companies, to rules set for SpAs when applicable.
3 AUDITING IN THE LIMITED LIABILITY COMPANIES (SRL)
The need to appoint a single auditor or a Board of Auditors in a Srl with a share capital not lower than the one foreseen for the SpA, has been cancelled (with the abrogation of the article 2447, paragraph 2).
As a consequence the appointment of a Board of Auditors or a single Auditor in a Srl is linked just to exceeding the limits to draft the annual financials in the ordinary format (assets exceeding 4,4 Ml, turnover exceeding 8,8 Ml, average of employees more than 50), to the fact the company is obliged to file consolidated annual accounts or the company controls another company obliged to have annual financials audited (article 2447, paragraph 3).
3.1 Dismissal of the existing Board of Auditors
When the Decree has been converted into Law, the legislator has clarified that the upcoming obligation of appointing the auditors, no more linked to the minimum share capital, give a just clause to dismiss the existing single auditor or the Board of Auditors.
It is still not clear if the dismissal has to be supported by the Italian Court of Justice under rquirements of article 2400, paragraph 2.
3.2 News of the Law Decree nr. 91/2014 and new statutory clauses
Given the giving out of the obligation to appoint auditors with relation to the amount of the share capital, it is needed also to verify the reflections of these news on the existing statues of the Srls carrying provisions for this requisite.
The theme has been analysed by the Italian National Counsel of Public Notaries in Rome that has specified that, following the modification made to article 2447, even for the existing Srls registered in the Italian Companies register at the effective date (June 25th 2014), the need to appoint the auditors is:
- Mandatory – in addition to the cases foresessn by article 2447 – if the incorporation deed (and statute) of the company foresees the appointment of an auditing body when the share capital is not lower that the minimum amount set for SpAs and the company ahs a share capital equal or exceeding Euro 50.000,00;
- Not Mandatory – when the statute of the company makes just a general reference to article 2447 or to those law specific cases and the company has a share capital equal or exceeding the minimum amount foreseen for SpAs.
The first clarification will have impact on those Srls that kept the share capital just below the former minimum level for SpAs (Euro 120.000,000), including in their statutes the appointment of the auditing body in case the share capital should have reached or exceeded the minimum level set for SpAs. Those companies have to appoint a new Board of Auditors or a single Auditor or have to modify their incorporation deeds and statutes.
Similarly Srls that on June 25th 2014, had a share capital exceeding the one foreseen for SpAs (Euro 120.000,00) have to keep the Board of Auditors or the single Auditor previously appointed until the share capital will be equal or will exceed the new minimum level of Euro 50.000,00.
In that case, to dismiss the auditing body, the company has to modify its statute, erasing the clause on the minimum share capital foreseen for SpAs. In this case the just cause will probably not exist, as specified during the decree's conversion.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.