Corporate Law
A) Italy – General Shareholders’ Meetings – approval of financial statements – new terms for calling
Section 106 of the Decree-Law no. 18/2020, so-called “Cura Italia” (published in the Official Gazette of the General Series no. 70 of 17 March 2020 and entered into force immediately) provides some new specific rules for shareholders’ meetings.
In particular, the aforementioned Section 106, in order to overcome the restrictions on activities involving the presence of more than one person in a single place, intervenes on two profiles:
a) the terms for calling annual financial statements meetings, which may be called within a longer period of 180 days from the end of the financial year
(instead of the ordinary term equal to 120 days from the end of the financial year, as provided by the second paragraph of Article 2364 of the Italian Civil Code and the first paragraph of Article 2478-bisc.c.);
b) the procedures for attending and exercising the right to vote at shareholders’ meetings, both ordinary and extraordinary, extending the possibility of using
those instruments, already provided for by company law, that allow such activities without physical presence in a single place.
The emergency rules provided for by the Government apply to Shareholders’ Meetings convened by 31 July 2020; should the state of emergency in Italy relating to the COVID-19 epidemic risk persist after that date, the special rules in question would remain in force for the same period of time.
B) Italy – attending and way to intervene in Shareholders’ Meetings
The Board of Notaries of Milan (statement n. 187) has recently expressed its opinion on the way to intervene in the Shareholders’ Meeting through telecommunication means.
It is well known that for shareholders to participate in the Shareholders’ Meetings by audio or videoconference it is allowed – in the presence of an ad hoc statutory clause – by art. 2370, paragraph 4, of the Italian Civil Code on the subject of s.p.a. (analogously applicable also to s.r.l.) and by art. 143 bis ofConsob Regulation 11971 of 1999 concerning listed companies.
The new orientation of the Board of Notaries of Milan stated that the use of such telematic means is not considered precluded even in the absence of the relative clause, as already stated by the Triveneto Committee of Notaries in the statement H.B.39.
In addition, the Milan Notary’s Board of Notaries extends the usability of the above-mentioned method of intervention by allowing it to cover all participants at the meeting. including the Chainnan, thus derogating from the principle expressed by the same Board in its statement n. I, according to which the meeting was to be considered as having been held in the place where the Chairman and the person taking the minutes were located.
In any case, the presence of the secretary taking the minutes or the public notary in the place indicated in the notice of call pursuant to Article 2363 of the Italian Civil Code is necessary, together with the person(s) appointed by the chairman to ascertain who is (are) attending in person (provided that this task is not entrusted to the secretary taking the minutes or the notary public).
Finally, at least for as long as the state of emergency caused by the circulation of Covid-19 remains, it is considered that any clauses in the articles of association, functional to the drawing up and immediate signing of the minutes, which require the presence of the chairman and the secretary or notary in the place where the meeting is called or in any case in the same place, are not binding for this mode of participation.
Therefore, in the case of shareholders’ meetings that do not require the notary’s minutes, given the need for both the chairman and the secretary to sign the minutes, it will be necessary to draw up so-called non-contextual minutes with the signing of both, while, in the case of shareholders’ meetings that do not require the notary’s minutes, it will also be possible to draw up so-called contextual minutes without parts, signed by the notary alone as permitted according to Article 2375 of the Italian Civil Code.
For any further questions or clarification on these issues please do not hesitate to contacting me.
Avv. RA Dr. Massimo Fontana Ros
M +39 331 7116211