The battle of startups to open the business in an innovative way

After the sentence of the Council of State, the Parliament too has a project to allow startups to form themselves online. But with a notary

Photo by StartupStockPhotos from Pixabay Startups, as well as all companies, will be able to form themselves online. But by public act. More than to the Council of State, it is necessary to look to Parliament to understand what the air is around for innovation and bureaucracy. Will the European Union save Italian startups from the typical constitution burdens of past centuries? To answer this question, it is necessary to see what the government will really decide to do, in implementing, by 1 August next, directive 1151 of 2019 on the use of digital tools and processes in company law (Article 29): it will adopt the Gattopardian criterion of change everything in order not to change anything?

Unfortunately at the moment it would seem so, in light of a specific directive introduced in the Senate months ago with an amendment by some parliamentarians of the Democratic Party (Alan Ferrari, Valeria Fedeli, Luciano D'Alfonso, Tommaso Nannicini) to the bill for a European delegation, approved by the House on March 31 and again being examined by the Senate for the final go-ahead.

The amendment in question provides that the " constitution of limited liability company and simplified limited liability company based in Italy, with capital paid up by means of contributions in cash, takes place online and is stipulated, anc he in the presence of a standard statute model, with a public deed formed through the use of a platform that allows videoconferencing and the signing of the deed with recognized electronic signature ". In other words: the constitution can be done online but the public deed will still be needed.

The question is legitimate in light of what happened just over 10 days ago between notaries and startups. If the news is known (the Council of State canceled the decree of the Ministry of Economic Development on the basis of the forcing deemed illegitimate to recognize the possibility of online establishment of startups without a public deed directly online as exclusive and not only optional), the results they are less so because between now and August an important match will be played that is worth focusing on. Whoever wins a battle does not necessarily win the war. But certainly an arm wrestling is announced.

Public deed vs online constitution

The news that opposed notaries and startups is known: the Council of State on 29 March canceled (sentence 2643 of 2021) the decree of the Ministry of Economic Development (Mise) which allowed the establishment directly online, without any "endorsement" by the notary or, in other words, "in the absence of a public deed". The Council of State accepted the appeal of the National Council of Notaries (CNN), which was rejected by the decision of the Lazio TAR of 2017.

It must be reiterated that the possibility of establishing an online limited liability company in the form of a startup innovative, as an alternative to the ordinary form of constitution by public deed, is legitimate on the basis of the Investment Compact decree, dating back to 2015, which introduced this possibility through a deed of incorporation digitally signed by the contracting parties and drawn up according to a uniform model, adopted by decree of the Ministry of Economic Development.

Precisely this implementing decree (of February 17, 2016) was challenged by the CNN and canceled by the Council of State on the basis of an excess of power, consequent to the provision of the online constitution "in exclusive ".

Reactions and interests in the field

The news caused a sensation among startups and, in general, in all those who believe that it is no longer sustainable to lose opportunities for development and innovation . The CNN, for its part, had the assistance of the formal text of the primary rule. In addition, the procedural story has its own timescales and scans, resulting in a lawsuit filed in 2017 being successful in 2021.

But the signal was very bad, especially in light of the publicized convention that the National Council of notariat stipulated with the Mise last December, a protocol "aimed at activating measures of connection and collaboration that allow to proceed in a synergistic manner to generate a decisive impulse for technological innovation at the service of citizens and businesses, strengthening the activity of supervision and control to protect the market, on the assumption that the clarity and stability of the rules are necessary to allow the development of relevant economic and productive sectors and to develop the areas of market and consumer protection ".

The world of business and startups reacted abruptly. Roma Start Up was just a party to the dispute. Assolombarda stigmatized the ruling as "a step backwards for the process of digitization, de-bureaucracy and simplification of relations between public administration and businesses, which further affects a strategic sector such as that of technological innovation in an already particularly difficult historical phase". A measure that is added to the cut in the tax credit on research and development and the failure to intervene on the cost of labor for startups, to the detriment of new hires. InnovUp spoke of an abrupt halt and promised to make its voice heard not only to return to the simplified start-up procedure, but also for further measures "in favor of the credibility and relaunch of Italy in the world". Silent the CNN and also the Chamber of Commerce of Rome, opposing the case before the Council of State.

A single online procedure

Now it's about not hiding behind a finger. And Giovanni Toffoletto, co-founder and CEO of LexDo.it, the legal tech that has supported many startups in the telematic establishment procedure, explains it well, because it is not that the online procedure worked so well. "The current procedure for setting up online startups is extremely complex, inefficient, and is applied inconsistently by the various local Chambers of Commerce, causing enormous problems. The data speak for themselves: only 25% of startups chose this path and the average time required for the online constitution was a few months compared to the few days of a constitution with a notary ”, says Toffoletto. And he adds: “Site by site, it is possible that the most absurd and arbitrary requests for additional documents are made to startups, so much so that in some cases the constitution takes place in six months. Definitely excessive ".

Without counting the" fiscal "and bureaucratic costs: in Italy setting up a startup costs from 1,000 to 3,000 euros compared to 50 and in 24 hours in England. "In 90% of cases, start-ups start with a capital of less than 10 thousand euros: if you already burn 3,000 at the time of incorporation, is the game worth it? Even the online procedure has high costs: just think of the registration fee of 200 euros, which you are forced to pay again in the event of even a clerical error in the statute ", says the lawyer.

For Toffoletto l 'implementation of the European directive 1151 would be an opportunity to “bring the country into line with the international standard and surpass it. It is necessary to develop a new procedure that learns from mistakes made in the past and that guarantees a fast, streamlined incorporation process with the same standards of control offered by notaries today. The procedure must be unique for the whole national territory with a single point of contact, without engulfing local authorities and individual Chambers of Commerce with complex and difficult to implement procedures ".

But now, to get a grip on it it was the Parliament, which "will oblige companies to be established on a platform with a notary in videoconference, eliminating any savings and any incorporation tax", says the lawyer. In short, it is a double challenge and the opposing armies are already studying tactics and strategy. One fact is certain: if the Recovery Fund indicates digitization as one of the strategic factors for relaunching the country, changing everything in order not to change anything is the risk to be thwarted.


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