Reform of the Third Sector: the new regulation of extraordinary operations for Social Enterprises is in force

From 4 July 2018 the new discipline pursuant to the Decree of the Minister of Labor of 27 April 2018, published in the Official Gazette no. 139 of 18 June 2018 for extraordinary operations (transformation, merger and demerger), the sale of the company and the transfer of the assets of the entities that have assumed the status of Social Enterprise.

The effectiveness of extraordinary operations and company transfers from now on will be subject to the authorization of the Ministry of Labor which, through a preliminary activity, will be required to verify that the subjects resulting from the operations preserve all the criteria envisaged for the ETS (absence of profit, constraints on the allocation of assets, activities of general interest). At least 90 days before the convening of the statutory body competent to approve the aforementioned operations, the administrative body of the entity will therefore be required to notify the Ministry of a written deed, the date of signature of which must be attested by the notary or other public official, containing the description of the operations to be carried out. This deed must be accompanied by the latest financial statements or other document proving the entity's financial situation, drawn up according to the criteria for drafting the financial statements, and a report by the directors which must indicate: "the reasons lead to carry out the extraordinary operation; the methods through which the subject resulting from the transaction undertakes to guarantee compliance with the requirement of non-profit making, the restrictions on the allocation of assets and the pursuit of the activities and purposes of the social enterprise; and the ways in which it is intended to guarantee the pursuit of the activities and purposes of general interest of the company".

Once the aforementioned 90-day period has elapsed, the silent consent rule will apply; on the other hand, in the event of a refusal, an appeal may be lodged before the territorially competent TAR.

Pursuant to the provisions of art. 3 of the Ministerial Decree in question, the provisions of articles 2498 to 2506-quater of the civil code apply to the transformation, merger and demerger operations, having regard to the legal configuration of the entity having the status of Social Enterprise.