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Provisions on Shareholders’ resolutions pursuant to Law Decree Cura Italia No. 18, dated 17 March 2020

By means of Law Decree Cura Italia No. 18, dated 17 March 2020 (the “CI”), the Italian Government adopted certain measures aimed at helping companies face the Covid-19 emergency. Among these, some are aimed at simplifying the procedure for the approval of the Financial Statements and the adoption of Shareholders’ resolutions (both ordinary and extraordinary ones).

The CI come into force on 17 March 2020 and its conversion into law has not been completed yet; therefore, the CI is still subject to amendments by the Italian Parliament.

Article 106 of the CI provides for measures applicable to Joint Stock Companies (società per azioni), Limited Partnerships (società in accomandita per azioni), Limited Liability Companies (società a responsabilità limitata), Cooperatives (società cooperative) and Mutual Insurance Companies (mutue assicuratrici):

  • the postponement of the term for the approval of the Financial Statements; and
  • measures aimed at facilitating the adoption of resolutions by the Shareholders.

The postponement of the term for the approval of the Financial Statements

Paragraph 1 of Article 106 of the CI states that, in derogation from Article 2364, para. 2, and Article 2478-bis of the Italian Civil Code (which provide for a 120-day term for calling of the General Meeting in Joint Stock Companies and in Limited Liability Companies) and from any other provision to the contrary contained in the company’s By-Laws, the Shareholders’ meeting for the approval of the Financial Statements must be called within 180 days from the end of the financial year.

Said extension applies automatically, i.e., regardless of whether the company By-Laws envisage such longer term and/or of the special needs related to the structure or the business purpose of the company usually required to justify such postponement.

Therefore, for companies whose financial year ends on 31 December 2019, the Shareholder’s meeting for the approval of the relevant Financial Statements must be called and held within 28 June 2020 (instead of 29 April 2020) on first call and within 28 July on second call, where applicable.

No amendments have been made with regard to the adoption of resolutions by the Managing Body (whether a Sole Director, a Board of Directors or composed of Directors with joint or separate powers) which will thus have to continue to follow the provisions already envisaged in the company’s By-Laws and/or applicable laws.

It is worth highlighting that, unlike the longer term pursuant to Article 2364, para. 2, of the Italian Civil Code (if envisaged in the company’s By-Laws), the postponement of the term for the approval of the Financial Statements to 180 days provided by the CI applies automatically and, therefore, it does not need to be resolved upon in advance by the Managing Body.

Such provision also applies to companies whose financial year does not end on 31 December 2019, provided that the relevant Shareholders’ meeting is called within 31 July 2020 or any later date depending on the duration of the Covid-19 state of emergency in Italy (Article 106, para. 7, of the CI).

The measures aimed at facilitating the adoption of the Shareholders’ resolutions

The second and third paragraphs of Article 106 of the CI introduce instruments aimed at facilitating and simplifying the holding of Shareholders’ meetings and, in general, the adoption of Shareholders’ resolutions in Joint Stock Companies (società per azioni), Limited Partnerships (società in accomandita per azioni), Limited Liability Companies (società a responsabilità limitata), Cooperatives (società cooperative) and Mutual Insurance Companies (mutue assicuratrici).

Attendance at Shareholders’ meetings

All participants may join the Shareholders’ meeting by u-sing telecommunication means. Such provision expressly provides that these must ensure attendees can be duly identified, participate in the discussion and exercise their voting rights.

It is worth noting that, while provisions on holding Shareholders’ meetings by telecommunication means were already envisaged in corporate law (and are already referred to in most of the company’s By-Laws), allowing the chairman of the Shareholders’ meeting and the Secretary of the same (or the Notary Public, where required) to join the meeting from different places is an absolute novelty. This provision is extremely useful not only for cases in which the Secretary is a previously appointed individual and cannot be appointed from time to time according to the company’s By-Laws, but also for companies which require the participation of a Notary Public, as in the cases provided by Article 2447 of the Italian Civil Code for Joint Stock Companies and Article 2482-ter of the Italian Civil Code for Limited Liabilities Companies.

Voting rights

As far as the Shareholders’ voting rights are concerned, the CI states that the notice of call may provide for votes to be cast by electronic means or via mail order and that Limited Liabilities Companies may resort to written consultation and consent expressed in writing, in derogation from Article 2479, para 4, of the Italian Civil Code and any provisions to the contrary contained into the company’s By-Laws.

Article 106 of the CI makes express reference to Articles 2370, para. 4, 2479-bis, para. 4, and 2538, para. 6, of the Italian Civil Code on holding Shareholders’ meetings and voting remotely.

The above-mentioned provisions apply in derogation from both the company’s By-Laws and any provisions generally applicable in pursuance of the Italian Civil Code.

Also said measures apply to all ordinary and extraordinary Shareholders’ meetings called within 31 July 2020, or a later date, should there be an ex-tension of the state of emergency.