Registrations on the Company Register, the information function prevails over the principle of typicality
With a recent decision (n. 3419/2018 – RG n. 10247/2018), the Court Section of Milan specialized in Business Matters adopted a permissive direction regarding company deeds that can be entered into the Company Register.
The above-mentioned decision supersedes a previous decision adopted by the Judge of the Register of Companies of Milan, arguing in favor of the prevalence of the information function performed by the Register of Companies rather than the principle of typicality of the acts that can be entered into it.
The problem arises from the Italian principle of typicality of the deeds that can be registered on the Company Register, given that art. 2188 of the Italian Civil Code with regard to company deeds states that the deeds that can be registered on the Company Register are exclusively the ones for which the law expressly prescribes the registration. So, the law doesn’t expressly state that the trials regarding the ownership of shares have to be registered in the Company Register. A different regulation is provided for the real estate sector (where the registration has a “reservation effect”).
The above mentioned decision is important because the judges go beyond a strictly formal interpretation of the rules, typical of the civil law system, observing that the principle of the typicality of deeds that can be registered has to be aligned with the principle of completeness and with the information function of the Company Register, which informs the entire system of corporate advertising (it is interesting to mention that before the legislative changes in ‘96 the majority jurisprudence had taken a contrary direction with regard to the transcription of preliminary contracts in the real estate sector).
In such extensive interpretation, the Court stated that even in the absence of an express legislative provision, all the acts amending any deed subject to registration, including judicial requests relating to the ownership of shares in a capital company, shall be registered on the Company Register.
The Court does not clarify the legal value of the aforementioned registration: does reservation effects similar to those provided in relation to real estate advertising? or does advertising effects typical of the Company Register registration set forth in article 2193 of the Italian Civil Code?
However, as the Court itself points out, the theoretic issue of the value of the registration of a claim regarding the property of shares in the Company Register, should be resolved by the principle of the “registration in good faith” set forth in article 2470 of the Italian Civil Code which resolves the dispute between several purchasers of the same shares sold by the same vendor.