Two – The Notary’s Office Company’s articles of association

Two – The Notary’s Office Company’s articles of association

The reform of limited companies introduced by Legislative Decree 47/2026 affects the articles of the associations.

The reform of limited companies introduced by Legislative Decree 47/2026 does not automatically necessitate a complete rewrite of the articles of association already in force. However, a thorough, clause-by-clause review is required, as the decree has not merely amended certain substantive rules but has also renumbered and restructured large sections of the Civil Code. The first step, therefore, is to distinguish between cases where the articles of association require actual amendment and those where a review in the light of the new regulations is sufficient. This is the framework set out in Study No. 63-2026/I of the National Council of Notaries, which, to this end, identifies three levels of review to be carried out sequentially on every existing set of articles of association.

The first level of review concerns the governance of public limited companies. The new Article 2380 of the Civil Code treats three systems as equivalent: the system with a board of statutory auditors (the traditional model with a board of directors and a board of statutory auditors), the system with a supervisory board (which has replaced the old dualistic system) and the system with a management oversight committee (which has replaced the one-tier system). Some in-depth analyses published after the decree came into force clarify that the choice between these three systems now rests exclusively with the articles of association, whilst also specifying that any change of model takes effect from the date of the meeting of the competent body convened to resolve on it. For companies already incorporated, however, no amendment to the articles of association is required where the current articles of association clearly identify the model adopted; such an amendment becomes necessary, however, where the articles of association merely list the three systems without selecting one, effectively leaving the decision to the general meeting of shareholders on a case-by-case basis.

The second level of scrutiny concerns the numerical references contained in the articles of association: the decree has, in fact, relocated or renumbered many provisions of the Civil Code. The fact that an article of association refers to an article that has now been repealed does not, in itself, render the relevant clause ineffective: if the provision referred to has simply been moved elsewhere, the reference should be understood as referring to the corresponding new provision. It is, however, advisable to systematically map these references and ensure that their numbering is updated whenever the articles of association are amended for other reasons.

The third level is more delicate, concerning clauses in the articles of association that refer to provisions of the Civil Code. Here, a distinction must be made between clauses that merely refer to a provision of the Civil Code and those that, conversely, reproduce its text in full. By its very nature, a reference tends to be ‘flexible’ and therefore follows the evolution of the law; by contrast, a clause that has transcribed the old legislation remains fixed in its original wording, even if the new law has since relaxed the restriction. Particular attention must be paid to clauses concerning the eligibility requirements for supervisory bodies and the non-competition obligations of directors, areas in which the reform has brought about significant changes: in such cases, it is not sufficient merely to replace the number of the cited article; rather, it is necessary to ascertain which provisions are currently applicable and whether the clause in the articles of association retains an independent effect vis-à-vis the provision of the Civil Code.

Among the measures to be assessed as a priority during the review of the articles of association, a number of in-depth analyses published following the entry into force of the decree also highlight the need to incorporate the new rules on the replacement of directors and the advisability of formalising board regulations that precisely govern the timing and procedures for the flow of information prior to board meetings, as well as the procedures to be followed when directors’ interests arise. However, the practical conclusion drawn by the Notarial Association remains clear: it is not a matter of ‘updating all articles of association’, but to subject them to a thorough review that allows for the identification of the governance system actually in use, the tracing of outdated cross-references, the distinction between these and reproducing clauses, the isolation of the provisions genuinely affected by the reform and, ultimately, to intervene only where truly necessary, assessing on a case-by-case basis whether to update other clauses as well when this helps to eliminate interpretative doubts.