Cross-border conversion and cross-border transfer of the registered seat: does the new article 2510-bis of the Italian civil code disrupt the balance?

Cross-border conversion and cross-border transfer of a company’s registered seat, while legally distinct operations, are inherently interconnected, as the domestic regulations of Member States may render their precise separation challenging. For the first time, Directive (EU) 2019/2121 and Legislative Decree No. 19/2023 have introduced a structured legal framework for cross-border conversions, aimed at resolving regulatory uncertainties and jurisdictional conflicts that had previously hindered their implementation across different legal systems. This essay examines the implications of the newly introduced article 2510-bis c.c., which appears to preclude the possibility of transferring the statutory seat abroad without a corresponding change in the applicable law, effectively equating such an operation to a cross-border conversion. Although this solution does not necessarily entail an outright departure from the incorporation principle, it does introduce a different modulation of the connecting factor within the Italian legal system, thus warranting an assessment of its consistency with European Union law. To avert overly restrictive interpretations, the present contribution underscores the need to reconcile this legislative development with the imperatives of corporate mobility, while safeguarding the fundamental principles of EU law and ensuring both legal certainty and transparency in cross-border transactions.