Update | Italian Golden Power regime: new extension
With our previous articles[1], we provided an overview of the legal framework relating to the Golden power regime, analyzing the 2021 and early 2022 new provisions on special powers and measures introduced by the Italian Government aimed at strengthening the monitoring of foreign investments in Italian companies as well as ensuring transparency in the capital market, including measures applying to transactions within the European Union.
On March 21, 2022, in response to the Ukraine-Russia crisis (and the direct and indirect consequences on the European and Italian economy), the Italian Government enacted specific provisions and measures so as to tackle the social and economic effects arising out of the war by way of Law Decree 21/2022.
The Italian Parliament has now converted Law Decree 21/2022 into law by means of Law 51/2022, which was published on the Official Gazette on May 20, 2022.
Both Law Decree 21/2022 and Law 51/2022 provide for significant amendments to the Law Decree no. 21 of March 15, 2012 (the so called “Golden Power Decree”).
The most significant novelties are:
1) the introduction, by Law 51/2022, of a new paragraph 5-bis to article 1 of the Golden Power Decree. Such paragraph provides for a notification obligation also in relation to the establishment of a newCo whose corporate purpose relates to activities in the defense and national security industry or which holds assets of strategic importance in the defense and national security industry;
2) the integration, by Law 51/2022, of paragraph 2 of article 1-bis of the Golden Power Decree, which now requires that the “yearly plan” (to be filed with the Italian Government by companies which propose to purchase goods or services relating to the set-up, manufacturing, maintenance and management of the broadband electronic communication services based on 5G technology) shall also include a comprehensive notice on agreements relating to the broadband electronic communication services based on 5G technology which have already been authorized (and for which the validity of the authorization stands);
3) the inclusion, by Law 51/2022, in the assets of strategic interest in the energy, transport and communications industries indicated by DPCM 180/2020 also of the ones under public concessions, however granted, including concessions of “large hydroelectric branch”. Also, the assets and business relations of strategic significance for the national interest provided for by DPCM 179/2020, now include the ones relating to public concessions (article 2, paragraphs 1 and 1-ter, of the Golden Power Decree);
4) the amendments to article 2, paragraphs 2-bis and 5, of the Golden Power Decree, which now provide that:
- any resolution, deed or transaction[2] by companies which hold one or more assets provided for by paragraph 1-ter of the Golden Power Decree (and so, by DPCM 179/2020) which result in changes to the ownership, control and availability of said assets to the benefit of an non-EU entity (as indicated by the newly introduced paragraph 5-bis of article 2 of the Golden Power Decree) or, in the industries indicated by the second sentence of paragraph 5 of article 2 of the Golden Power Decree (as explained below in this point no. 3), also to the benefit of an EU entity, including those “established or residing” in Italy, shall be notified with the Presidency of the Council of Ministers so as to allow the Italian Government to assess whether the veto right shall be exercised or not. The notification obligation does not operate in the event that the transaction has already been under scrutiny; and
- the communication, energy, transport, health, agricultural and finance, including the banking and insurance industries are included in the ones which require the filing of the notification with the Italian Government (second sentence of said paragraph 5 of article 2 of the Golden Power Decree). The notification obligation provided for herein in relation to share deals also lies on “entities belonging to the European Union, including the ones residing in Italy”, of such importance as to determine the permanent establishment of the purchaser by virtue of the acquisition of control of the company whose shareholding is the object of the purchase.
5) the introduction, by Law Decree 21/2022, in the last sentence of paragraph 5 of article 2 of the Golden Power Decree, of notification obligations also in relation to the purchase of shareholdings by non-EU entities relating to companies which hold assets in the industries provided for by paragraph 1 and paragraph 1-ter of article 2 of the Golden Power Decree (therefore, by DPCM 179/2020 and DPCM 180/2020) which grant a share of the voting rights or of the share capital of at least 10%, taking into account the shares or quotas already directly or indirectly held, when the total value of the investment is equal to or greater than one million euros. The notification obligation also applies to transactions which result in exceeding the thresholds of 15%, 20%, 25% and 50% of the share capital;
6) the introduction, by Law 51/2022, of a new paragraph 7-bis of article 2 of the Golden Power Decree which provides for notification obligations also in relation to the establishment of a newCo which operates or holds ore or more assets in the industries provided for by paragraph 1 and paragraph 1-ter (and so, by DPCM 179/2020 and DPCM 180/2020) in the event that one or more shareholders, extra-EU individuals or entities, hold a portion of the voting rights or the share capital equal to not less than 10%.
[1] Full articles at https://www.rplt.it/corporate-m-a/italian-golden-power-regime-the-2021-new-provisions-following-dpcm-179-180-2020-and-law-176-2020/ and https://www.rplt.it/corporate-m-a/italian-golden-power-extended/.
[2] Including resolutions relating to merger or demerger of the company, transfer of business as a going concern or branches of the company which include assets provided for by paragraph 1-ter and DPCM 179/2020 or grants of guarantees on the same, transfer of subsidiaries of the company which hold the aforementioned assets, or the transfer of the registered office of the company outside the EU.
