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Strenghtening Of The "Golden Power" From The Italian Government
The Italian Government has intervened once again with the provisions contained in Chapter III (entitled “Urgent provisions regarding the exercise of special powers in sectors of strategic importance”) of Decree Law no.23 of 8 April 2020, on the subject of "golden power", to further strengthen and to extend the scope of the application rules, with the aim of better protecting, in this particular situation of social emergency, some sectors considered strategic for our national economy.
To better understand the meaning of the "golden powers" and its origin, it is important to recall that our legislator, back in 1994, had introduced rules which attributed special powers to the shares held by the Italian State in public companies, during privatization and consequent entry of private shareholders which could be Italian or Foreigners (the so-called "golden share").
Since these rules, also present in other EU countries, had been the subject of complaints raised by the European Commission (and in some cases also of a sentence of condemnation by the EU Court of Justice), with the Decree Law no.21 of 15 March 2012, the Italian government had regulated once again the matter of special powers exercisable by the government in some sectors, in order to make the rules compatible with European law.
The 2012 regulation allowed the exercise of special powers by all companies, public or private, which carry out activities considered of strategic importance, therefore no longer only with respect to the privatized or publicly owned companies, as per the provision in the 1994 legislation. In particular the various decrees which have gradually followed, have:
- identified the sectors (energy, transport, communications) and the activities and/or assets of strategic importance for the defence and national security system (most recently the electronic broadband telecommunication networks with 5G technology);
- established the special powers of the Italian State and the intragroup deeds/operations excluded from the operating scope of the new regulation;
- defined the methods by which to actively exercise these powers (moving from the institution of the "golden share" to that of the "golden powers" which is not only the powers and/or faculties attributed to the Italian State but also the duty of notify obligations by the interested parties, exercisable or imposed on the occasion of particular circumstances and/or corporate operations).
The Government action was therefore directed, in particular, to verify:
- the holdings in the share capital of national companies, with particular regard to changes in governance relationships and corporate policy frameworks likely to cause prejudice to the national interests;
- the acquisitions by foreign corporations, with the intent of posing a risk in term of affecting or destabilizing the normal corporate management;
- the transfers across borders of decision-making centers of the Italian companies, as well as a total or partial relocation of production;
- foreign investments in the infrastructure segments (energy, transport and telecommunications);
- joint ventures aimed at carrying out joint investments abroad in high-tech sectors, in particular in the energy and communications sectors, which could lead to the loss of know-how for the benefit of the foreign shareholder, facilitating its access to the markets.
The Italian Government, by implementing the European Regulation of 19 March 2019 no. 2019/452 of the European Parliament and of the Council, which establishes a framework for the control of foreign investment in the Union, and which shall not prejudice the right of the States Member to waive from the free movement of capital provided for in Article 65 , paragraph 1, letter b), TFEU, by allowing them to impose restrictions on such circulation for reasons of public order or public security:
- has extended the obligation of prior notification to the Prime Minister’s Office of the purchase of any shareholding in companies that hold assets and relationships in the sectors referred to in art. 4, paragraph 1, letters a) to e) of the aforementioned EU Regulation1, including the financial, credit and insurance sectors, by a Party outside the European Union;
- has introduced a transitional regulation, in force until 31 December 2020, pursuant to which the notification obligation is extended:
- to resolutions, acts or transactions, adopted by an enterprise that holds assets and relationships in strategic sectors, including the financial, credit and insurance sectors, which have the effect of changing ownership, control or availability of these assets or changing their destination;
- to the purchases by foreign Parties, including those belonging to the European Union, for any reason, of significant investments such as to determine the stable establishment of the purchaser by reason of taking control of the company whose participation is the object of the purchase, pursuant to article 2359 of the civil code and the consolidated text referred to in Decree Law no. 58 of 24 February 1998; as well as purchases of shareholdings by foreign Parties not belonging to the European Union, which attribute a share at least equal to 10%,of the voting or capital rights, taking into account the shares or quotas already directly or indirectly owned, and the total investment value is equal or greater than € 1 million;
- to the acquisitions exceeding the thresholds of 15%, 20%, 25% and 50%.
The notification obligations in force until 31 December 2020 apply to the resolutions, deeds or transactions, as well as purchases of equity investments, relevant for the purposes of the notification obligations for which this obligation arose in the aforementioned period, even if the notification occurred later or was omitted.
 These are: a) critical infrastructures, whether physical or virtual, including energy, transport, water, health, communications, the media, data processing or archiving, aerospace infrastructures, defence, electoral or financial infrastructures, sensitive structures, as well as investments in land and properties essential for the use of these infrastructures; b) critical technologies and dual-use products as defined in Article 2, point 1 of Regulation (EC) no. 428/2009 of the Council, including artificial intelligence, robotics, semiconductors, cybersecurity, aerospace, defence, energy storage, quantum and nuclear technologies, as well as nanotechnology and biotechnology; c) the security of the supply of critical production factors, including energy and raw materials, as well as food security; d) access to sensitive information, including personal data, or the ability to control such information; e) media freedom and pluralism.
Maurizio Bottoni is the senior partner of Interconsulting. As a consultant in one of the Big Four he has developed a deep knowledge of the Italian and International tax law, through the involvement in operations and reorganization of multinationals. Extraordinary transactions and international issues are his daily business.