Innovative start-up: the power of the Registry Office to verify the requirements of innovation
With a recent ruling the Court of Rome confirms that the Office Register of Companies cannot refuse the registration in the special section of the Register to an innovative start-up, unless the lack of the characters of innovation of the corporate purpose and of high technological value of the products or services offered by the company is evident.
In fact, pursuant to art. 25 paragraph 12 of Decree Law 179/2012, the innovative start-up is automatically registered in the special section of the Register of Companies, following the compilation and presentation of the application in electronic format, if it contains the information listed in the same paragraph 12 of art. 25. Therefore, the Office Register of Companies may only proceed to a formal control of the application and of the completeness of the documentation required by law for the purpose of registration in the special section of the Register.
As expressly provided for in paragraph 9 of the art. 25, for the purpose of registration in the special section of the Register of Companies, the existence of the elements of the innovative start-up is attested by a self-certification produced by the legal representative of the company, who will assume the criminal responsibility.
The aforementioned provisions confirm, therefore, that the Office Register of Companies has no power to judge if the corporate purpose corresponds to the requirements of innovation or if the elements of high technological value of the products or services required for the configuration of an innovative start-up are met. However, the Registry Office is entitled to verify the consistency between the “innovative start-up” regulatory type and the program set out in the corporate purpose of the company and, therefore, in case of evident incompatibility with respect to the regulatory type, the application for registration in the special section may be rejected, since the difference between the substantive and the merely declarative aspect is so obvious that no preliminary investigation is needed to identify it (Court of Turin, February 10, 2017).
On the basis of the aforementioned principles, the Court of Rome, in its decision of April 5, 2019, held that the check of compatibility allowed to the Registry Office is limited to an examination concerning the corporate purpose as indicated in the company’s by-laws. Consequently, the Registry Office cannot review the specific methods of execution of a capital increase, even though uncertainties may arise from them on the maintenance of the requirements that justify the qualification of innovative start-up and on the achievement of the corporate purposes.
