Update | Italian Golden Power regime – new pre-filing procedure

On August 1, 2022 the Italian Government enacted the Decree of the Presidency of Council of Minister 133/2022 (“DPCM 133/2022”), published on the Official Gazette on September 9, 2022 (CLICK HERE to download the document).

The main purpose of the DPCM 133/2022 is to rationalize and simplify certain procedural matters relating to the filing and subsequent management of the Golden Power notification to the Administrative Coordination Department of the Office of the Prime Minister (“ACDOPM”).

As a preliminary comment, the DPCM 133/2022 (and, therefore, the new provisions thereto) will come into force on September 24, 2022.

The most significant novelty brought by the mentioned decree relates to the introduction of a pre-filing procedure (article 7 of DPCM 133/2022).

In particular:

1. before the filing of a formal Golden Power notification, any entity is now entitled to submit to the ACDOPM a notice on projects relating to any establishment, acquisition, resolution, deed or transaction which may be relevant under the Golden Power regulation. Such filing shall contain all documents and information required by the formal Golden Power notification;
2. within 30 days from the filing of the aforementioned notice (i.e. a much shorter period of time compared to normal filing), the ACDOPM shall notify whether: (a) the proposed transaction does not fall within the scope of the Golden Power regulation and that, therefore, no formal Golden Power notification is required; (b) the proposed transaction does fall within the scope of the Golden Power regulation and the entity is therefore required to file the formal Golden Power notification; (c) even if the proposed transaction does fall within the scope of the Golden Power regulation, there are clear reasons to exclude the exercise of the “Golden Power” by the Italian Government.
3. in scenarios of point 2 letters b. and c. above, the Italian Government may submit to the entity certain recommendations;
4. in scenarios of point 2 letters a. and c. above, the Italian Government may also demand that the entity files a formal Golden Power notification anyway.

Also, article 13 of DPCM 133/2022 indicates that the information and data coming from public authorities or by private entities (i.e. for instance the one included in the pre-filing notice) under DPCM 133/2022 is excluded from the public access to documents provided for by administrative law, though access pursuant to article 24, par. 7, law 241/1990 is not excluded.

The new pre-filing procedure therefore allows to verify if a proposed transaction may fall within the scope of the Golden Power regulation and may potentially result in consistent time savings, should the proposed transaction fall outside the scope of the Golden Power regulation.

Of course, it will be important to assess the right moment and the opportunity to use such procedure, depending on the type and content of the transaction, also in view of confidentiality considerations.