Legislative Decree no. 19/2023 disciplines the cross-border conversion of EU companies.
Legislative Decree 2 March 2023 no. 19 introduced into Italian legal system the institution of cross-border conversion, a proceeding by which an Italian company transfers its registered office in another EU Member State or, vice versa, a foreign company in EU transfers its registered office to Italy, deleting itself from the Register of Companies in the State of origin (and registering in the Register established in the State of destination), losing the law of the State of origin as its governing law and assuming, as its governing law, that of the State of destination.
It is no longer possible, as previously happened, to transfer the registered office to another State and keep the company governed by the law in force in the State of origin.
This operation is completely new as for the Italian legal system: it is called “conversion” (despite its essence consisting in a cross-border transfer of registered office) as the company that carries out this proceeding replaces the legal form governed by the law in force in the country of origin with the legal form governed by the law in force in the country of destination.
Legislative Decree no. 19/2023 was issued as implementation of EU Directive 2019/2121, issued in order to encourage freedom of establishment and to provide companies with new opportunities for economic growth.
The operation of cross-border conversion recalls – mutatis mutandis – that of cross-border mergers and is based on a control of legality activity which takes place – preliminarily – by the competent authority in the EU State of origin – after adoption – in the EU State of destination.
In case of Italian companies that transfer their registered office in another EU Member State, the following proceeding applies:
- cross-border conversion project approved by the Board of Directors;
- shareholders’ resolution adopted by public deed approving the cross-border conversion project;
- issue of the preliminary certificate by a public notary certifying the regular fulfilment, in accordance with the law, of the acts and formalities preliminary to carrying out the conversion;
- issue of the final certificate by a public notary certifying the control of conformity and legality of the procedure of conversion directed to give efficacy to the operation.
In case of an Italian company that transfers its registered office abroad, the same company is cancelled from the Italian company register when the competent foreign office has registered the company resulting from the conversion.
In any case, the company resulting from the conversion retains the rights and obligations and continues in all relationships of the company that carried out the conversion.