In words they are all for simplification. In fact, well in fact it would seem not. The case, in its emblematic way, concerns thousands of small businesses that had deluded themselves that they could save the notary’s money and the bureaucratic process of registering with the chamber of commerce. And that instead today they will have to “comply”.
The background is as follows: in 2015 the Renzi government had approved a decree law (Legislative Decree No. 3 of 24 January) which, among other things, allowed innovative start-ups to be established with a simple online registration. The subsequent implementing decree of the Mise (the Ministry of Economic Development) established that “the deed of incorporation and the statute, where separate, are drawn up exclusively by computer and bear the fingerprint of each of the subscribers”. Translated: to open a company that deals with “innovative products or services with high technological value and for which registration in the special section of start-ups is required” a digital signature would have been enough. Without going to the notary.
The sentence of the council of state which cancels the Mise decree
Well. Indeed, no. Because on March 29, the Council of State accepted the appeal presented by the National Council of Notaries – rejected in the first instance by the Lazio TAR – explaining that the contested decree (that of the Mise) “could only have a merely executive connotation”, and instead it had provided that the deed was drawn up in an “exclusively computerized” mode where the law of 2015 “provides for an alternative as regards the modalities of establishment” that could take place both by public and digital deed. Furthermore, a digital recording would not have allowed the necessary legality checks to be exercised. Everything to be redone therefore. The ruling of the Council of State, however, also recalling two disintegrating European directives, also made it clear that the incorporation of companies did not necessarily have to take place by public deed, as long as there was a preventive, administrative or judicial control (checks that with decrees implementation of the Mise were not guaranteed).
No simplification: even start-ups must go through notaries
The fact remains that with the ruling of the CDS the establishment of these companies was carried over to the notary. Also because in three months the government has not yet decided what to do. “The arm wrestling is on the restoration of the norm that notaries do not want to be put back on their feet” he explains to Today Gianmarco Carnovale president of Roma Startup. Which then argues thus: “The council of state has annulled an implementing decree, not the law of the state”. Reason for which, says Carnovale, it would be enough to rewrite the implementing decree, incorporating the indications of the judges. But is there really the will to do it? Maybe not. Or not so quickly.
A few days after the sentence, the Minister for Development Giancarlo Giorgetti met the representatives of the National Council of Notaries at the Mise. “At the center of the discussion – specified a ministerial note – the creation of the online platform for innovative startups srl”. Notaries have ensured simpler and “less expensive” procedures for new businesses, while the Northern League player Giorgetti spoke of a “positive and virtuous path that combines the necessary progress in de-bureaucracy with the safety of startup registration steps”. The notary for its part has made it known after the pronouncement of the Cds that it is not “absolutely contrary to the ‘innovative startup’ model” and that the public deed will allow to maintain “the reliability of the public registers and not allow criminal organizations to use indiscriminately new corporate models that are particularly attractive as they are significantly facilitated, but not adequately controlled and supervised “.
More than 3,500 companies risk having to “comply”
What is certain is that, contrary to the provisions of the 2015 law, today even companies that make innovation have to bear the extra costs to register in the business register. “And look – Carnovale argues – tariffs have started to rise again since the sentence”. And then, he argues, “it is a bit curious that the Ministry is discussing the matter with the notary and has not met any of the startup associations. Is a question between parties resolved, putting only one at the table?” And there is another aspect, not a secondary one, still to be clarified. What will happen to all those companies that have already registered taking advantage of the rule put on stand-by by the State Council? According to data from Unioncamere and Infocamere, the option was chosen by 3,579 start-ups. In 2020, 37% of those who started one of these activities decided to use the simplified procedure. What are these companies to do? Apparently the Mise could decide to send everyone back to the notary. With all due respect to simplification. And the portfolios of those directly involved. “At the moment – says the president of Roma Startup – nothing obliges them to sign a public deed, but what would happen if a third party, let’s say a creditor of these start-ups, decided to take them to court to challenge their constitutive legitimacy?”.
In short, a nice mess. To which, however, you could put a patch. “A new ministerial decree would have been enough to acknowledge the objections of the Council of State and say that the start-ups created are valid”. Why wasn’t it done? “If you go around the Italian parties and secretariats – argues Carnovale -, they all tell you that they are on the side of start-ups and young entrepreneurs, but then there is a sub-state that does not want to be simplified …”. The moral? We talk a lot about innovation and then, when we get to the point, we go back to the past. A nice paradox.