The introduction of the regulatory provisions enacting the Law 29/12/93 no. 580 now seems imminent, and with which, some fifty-two years after the promulgation of the Italian Civil Code, the Registry of Enterprises provided for under Art. 2188 of the Code has finally been established.
Until now (and, in fact, for the time-being until the above-mentioned legislation enters into force) the "transitory" regime provided for under Art. 100 of the Transitional Provisions of the Civil Code has regulated this area. The said Art. 100 provides that the registration of commercial companies is to take place at the Clerk's Office set up for the purpose at the competent court - with a total exemption, however, for commercial undertakings the owners of which are individual entrepreneurs or public agencies - and that the Clerk's Office also provides for the registration of acts and resolutions specified therein, which are the same as those provided for in the previous legislation of 1865.
On the other hand, to a very limited degree, the service provided by the Registry of Businesses (Registro delle Ditte) maintained by Chambers of Commerce, with very different aims and capacity (in particular the so-called "bare publicity", which has no constitutive effect), has, until now, mitigated the effects of the extreme delay and the lack of the system of registration decreed by the Code, and of the regime of certainty that the latter was intended to establish.
Now, if the regulatory activity of the Government keeps faith with the provisions of the above mentioned law, it would appear that things are destined to become easier and more rational, whether for Italian undertakings or for those who have dealings with them.
We refer, above all, to the predicted computerisation and network linking of the registration system, thanks to which immediate access should be guaranteed to any information concerning any commercial operator within the State territory, regardless of the place in which such operator has its place of business or pursues its activities.
The publicity of annual company accounts provided for under the new system assumes particular importance, since prompt availability of such information to the public is, at present, merely symbolic, given the chronic state of crisis of the Court Clerk's Offices for Commercial Companies and the lack of manpower and resources that afflicts them, and leads to constant and monumental delays.
The law instituting the Registry of Enterprises also includes special sections of the Register for agricultural entrepreneurs, small-scale entrepreneurs and craftsmen, in relation to whom not even the Civil Code imposes such obligation. However, there remains some doubt, given the silence of the legislation on the matter, as to what would be the consequences of the non-registration of such subjects (in fact the law actually speaks of "annotations" instead of "registrations"). Such provision would probably be considered of the same nature as that presently in force regarding the existing Registry of Businesses - which will be absorbed into the newly instituted Registry of Enterprises - with subsequent equal efficacy of "bare publicity" and equal sanctions for non-compliance.
It is worth noting that even after the Registry of Enterprises has become fully operational the existing system of legal publicity shall obviously remain in force as provided for by the first EC Directive on company law matters, on the basis of which certain notices are to be published in BUSARL (the Official Bulletin of Joint Stock Companies and Limited Liability Companies) for capital companies, and in BUSC for cooperative companies; it remains to be seen how the co-existence of the two forms of publicity in question shall be regulated, such harmonisation being expressly required of the Government by the implementing law.
In the end, it will be the task of the regulatory legislation to coordinate the various subjects who take part in the system of publicity of undertakings, in that a full role will be recognised and entrusted to the Chambers of Commerce for Industry, Agriculture and Craftsmanship. The Chambers of Commerce will in fact be asked, under the control of a judge delegated by the Court (Art. 2188 Civil Code) to be responsible for receiving acts to be filed or registered, and, of course, to perform the necessary duties (with the mere receipt of the filing or registration), while at present the applicants are not requested to directly fulfill other requirements, such as, for example, obtaining the ratification of the Court or the publication in BUSARL.
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.
