On 21 March 2022, Italian Law Decree no. 21/2022 was published in the Italian Official Gazette. Said Law Decree provides, among others, amendments to Law Decree no. 21/2012, subsequently converted into Law no. 56/2012 (the “Golden Power Decree”), which governs the special screening and intervention powers of the Italian government regarding foreign investments in Italy.
The changes made to the golden power regulation take into account the growing geopolitical tensions at international level and are aimed at strengthening the protection of strategic national activities, considering the increased relevance of certain sectors (e.g., 5G technology) and the need to streamline the screening proceedings.
The main provisions introduced by Law Decree no. 21/2022, which is effective as of 22 March 2022, are summarised herebelow.
- Defence and security sector
As regards defence and national security sectors, the Golden Power Decree is amended to include among the transactions subject to notification, in addition to the extraordinary transactions (such as mergers, demergers, acquisitions, etc.) concerning entities carrying out activities of strategic importance in the defence and security sector, also those that, more broadly, result into changes to the ownership, control or availability of assets or the allocation of such assets as collateral.
Such amendment essentially aligns the cases subject to mandatory notification in the defence and security sectors with those provided for the other strategic sectors (under Article 2 of the Golden Power Decree).
- 5G and cloud technologies sector
Broadband electronic communication services based on 5G technology (Article 1-bis of the Golden Power Decree) are qualified as activities of strategic relevance for the national defence and security system and, thus, fall within the scope of Article 1 of the Golden Power Decree. Further activities subject to this qualification may also be identified by Decree of the President of the Council of Ministers.
With regard to the notification obligations, the entity intending to acquire goods or services related to the activities connected to 5G technology (or to the additional activities identified by Decree of the President of the Council of Ministers) shall notify in advance an annual plan relating the transaction, indicating, inter alia, a list of actual and potential suppliers and disclosing ongoing agreements and prospective development of the 5G network. Also in this case, the definition of a detailed regulation is deferred to a Decree of the President of the Council of Ministers.
In addition to the above, the notifying parties are expressly required to produce half-yearly reports following the exercise of the government’s special powers.
Failure to comply with the notification obligation is sanctioned with the nullity of the agreements concluded between the parties and with a penalty up to 3% of the turnover of the non-compliant party. In addition, the competent authority may order to the parties involved to restore the situation existing prior the execution of the deed that was subject to notification.
- Confirmation of certain provisions of the emergency regime
By Law Decree no. 23/2020 (subsequently converted into Law no. 40/2020), under the threaten of strategic Italian companies being acquired by foreign investors due to the economic crisis caused by Covid-19 outbreak, the Italian government temporarily extended the golden power regime – in particular with regard to the strategic sectors provided under Article 2, par. 1 and 1-ter, of Golden Power Decree – in order to exercise more control through its special screening powers.
Following various deferrals, said emergency regime was extended until 31 December 2022.
Some of the rules provisionally established by the emergency regulation have been confirmed and incorporated in the ordinary regulatory regime provided for by the Golden Power Decree. In particular, the following provisions shall also apply after 31 December 2022:
- the obligation for non-EU operators to notify minority acquisitions (above 10%, 15%, 20% and 25%); and
- the obligation for EU operators (including Italian operators) to notify acquisitions of controlling stakes should the acquisition pertain specific strategic sectors (i.e., energy, communication, transport, health, agribusiness and financial, including credit and insurance, sectors).
- Procedural and administrative aspects
In order to streamline the procedure and ensure certainty in the application of the golden power regulation, the following procedures are introduced:
- a simplified procedure for cases where the coordination committee unanimously decides not to exercise the special powers; and
- pre-notification mechanisms, by means of which it will be possible to obtain clarifications from the competent authority on the applicability of the golden power rules and the prospective authorisation on a given transaction, before the latter is actually implemented.
The definition of modalities and terms for the exercise of the aforementioned procedures is delegated to a Decree of the President of the Council of Ministers.
Furthermore, joint notification by the parties involved in a relevant transaction is expressly provided for and regulated. This approach, widely adopted in practice, is now identified as preferable solution, in order to facilitate the simultaneous participation of all parties involved in the control procedures.
Where a joint notification is not made, the notifying party shall inform the other parties involved of the occurred notification (and details thereof), so that they may intervene in the relevant proceeding.