7 - Italy

Summary

Introduction

1. Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees (the ‘Directive’) has been transposed into Italian law by means of Legislative Decree N° 188 of 19 August 2005 (effective 6 October 2005, the ‘Legislative Decree’). As far as Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE) (the ‘Regulation’) is concerned, no implementing legislation has been adopted in Italy so far. In this respect, though a Council regulation is, in principle, immediately applicable within all Member States, regardless of whether implementing rules have been enacted, in some instances the Regulation seems to refer to national laws to be enacted by each Member States in relation to the SE.

Due to the abovementioned lack of implementation of the Regulation, there has been a lengthy debate amongst scholars and notaries in Italy regarding the possibility to form an SE with its registered office in Italy. Although the issue has been somewhat controversial, the prevailing opinion seems to be that an SE can be set up with its registered office in Italy. This interpretation has been, in particular, upheld by the authoritative National Council of Notaries (‘NCN’) in an opinion rendered in March 2006.

The NCN's interpretation has – to a certain extent – filled in gaps left by the Italian legislature, in particular with respect to identification of the national authorities in charge of certain formalities in connection with the incorporation of an SE.