Treatment reciprocity in Italy
Limitation to a foreign investor to invest in Italy
Legal limits for doing Foreign Direct Investments in Italy and for incorporating a company
The most common types of investment in Italy of foreign operators are:
- purchase of property rights on immovable property, goods and other real rights;
- monetary credits and other benefits payable on a contract basis;
- acquisition of existing companies or their shares;
- creation of new companies;
- copyright and intellectual property;
- legal concessions, such as exploration, extraction and exploitation of natural resources.
There is no reciprocity when a foreign country places restrictions on an Italian investor who wants to establish a company in that country, since in such cases Italy applies the same limitations to the foreign citizen of that country, or to the foreign company of that country that wishes to invest in Italy.
The check about the existence of treatment reciprocity can’t be made towards citizens of those countries with which Italy has concluded bilateral Bilateral Investment Treaties (BITs), for the matters covered by it, see the list of signed BITs:
In any case, if the rules concerning the role of company director in Italy is not contemplated in BITs, then the existence of treatment reciprocity must be verified on a case-by-case basis.
If there is no reciprocity, the foreigner operator has not the ability to act and can not become a partner of company or director of a company in Italy, because this is contrary to the imperative rules of the Italian state.
There are limits to foreign operators for the participation in airline companies in Italy.
The foreign operator has the burden of proving the existence of treatment reciprocity by any suitable means, even attaching international treaties, domestic laws (of the foreign state), declarations of administrative authorities such as embassies or consulates overseas or jurisprudence.
To determine whether a foreign subject (an individual, a company or other entity) can:
- invest in Italy by incorporation of a company or
- own shares in Italian companies,
Is necessary to proceed as follows:
- to check whether there are international BITs agreements between Italy and the foreign country of the foreign investor;
- if there are no such kind of agreements, Italian private international law (Law No 218/1995) applies.
It is necessary to ascertain whether the foreign investor comes from an EU country or a no EU country.
If the foreign investor intending to set up a company in Italy is:
- a national citizen of EU or
- a company established in the EU;
to these operators will apply the same rules apply to an Italian citizen and to an Italian company.
The above rules apply also to investors in Iceland, Norway, Liechtenstein and Switzerland, as they are signatories to the European Economic Area agreement (E.E.A.).
If a foreign investor intending to set up a company in Italy is an EU citizen or is a company established in an EU country, it is necessary to ascertain whether he or she is regularly resident in Italy or not.
Case 1: foreign investor from an extra EU country regularly resident in Italy
The non-EU foreign nationals are regularly resident in Italy if they own:
- residence card (carta di soggiorno) or
- residence permit for employee or self - employed work or
- residence permit for family reasons or
- residence permit for other reasons provided by law or
- residence permit or equivalent certificate issued by the competent authority of an EU Member State (within the limits provided for by specific agreements).
This non-EU foreign national may incorporate or become a member of an Italian company, unless there is a limitation due to the lack of reciprocity conditions between Italy and the foreign country of the person concerned.
If a non EU foreign operator wants to set up a company in Italy or become a company director of a company in Italy, he must demonstrate:
- have adequate economic resources as attested by the Chamber of Commerce;
- have the requirements provided by Italian law for the exercise of a specific activity for which may be required to be enrolled at professional bar or roles;
- be in possession of a Chamber of Commerce attestation, released not earlier than 3 months, confirming that there is no obstacle to the issuing of the license for the exercise of a given activity.
Case 2: foreign investor of a non EU country NOT regularly resident in Italy
A foreign individual who is not regularly resident in Italy may become a member of an Italian company subject to existence of reciprocity treatment with the foreign state of which he is a national. The same principle applies to non-EU foreign companies.
There is reciprocity when the commercial law of a foreign country permits the participation of an Italian (a natural person or company) in a company similar to that to which the foreigner intends to participate in Italy and under the same conditions.
Refugees and stateless persons
Refugees can only form companies in Italy if they reside regularly in Italy for at least 3 years.
Stateless persons (ie people without any nationality residing or domiciled in Italy) are subject to Italian law. They can only form companies in Italy if they have been resident in Italy for at least 3 years.