Foreign direct investment in Italy: the revised golden regime of power | Allen & Overy LLP

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overview

The regime governing foreign direct investment in Italy, known as the “Golden Power” regime, allows the Italian government to scrutinize transactions affecting “strategic” industrial sectors and gives it the power to impose conditions on or impose conditions on such transactions Case even veto prohibit threat to the national economy or security. The regime was introduced in 2012 with the Golden Power Decree and has recently been strengthened to deal with possible threats posed by the pandemic.

The decree provides for the following changes to the Golden Power decree, among others:

  1. expanding the number of industrial sectors considered strategic for the national economy, particularly in relation to the 5G and cloud services sectors;
  2. the change in the notification procedures set out in the Golden Power Decree; and
  3. the confirmation (with some clarifications) of the once exceptional regime introduced in 2020 in the context of the COVID-19 pandemic (by Legislative Decree n. 23/2020 – Decreto Liquidità), which was due to expire on December 31, 2022.

defense and national security

The Decree:

A. stipulates that transactions that may affect the ownership, control and availability of strategic assets and the creation of collateral for defense and national security assets must be reported to the government. Before the decree came into force, the obligation to report in the defense sector was only triggered for changes in the corporate structure (mergers, demergers, etc.) and acquisitions; and
B. Extends the original sanctions imposed on the buyer to the target company if it fails to comply with possible government requirements for a particular transaction (up to twice the transaction value and in any case not less than 1% of the turnover). of the buyer).

energy, telecommunications and transport

The Decree:

A. confirmed the Decreto Liquidità provisions originally scheduled to expire on December 31, 2022. Due to this extension, the government must be notified in case a non-EU foreign buyer acquires the 10% of the target company whenever the value of the investment is more than EUR 1 million. Acquisitions that exceed the thresholds of 15%, 20%, 25% and 50% must also be reported; Bank
B. stipulated that the government also applies to takeovers by EU bodies (including persons residing in Italy) of companies operating in the communications, energy, transport, health, food and finance (including insurance and credit) sectors provided that such transactions result in the permanent establishment of such companies in Italy by virtue of the acquisition of control of the target company; and
C. extended the original sanctions imposed on the buyer to the target company for non-compliance with possible conditions imposed by the government for a specific transaction (up to twice the value of the transaction and in any case not less than 1% of the turnover). of the buyer).

procedural changes

The Decree:

A. simplifies reporting procedures. In cases where the Presidium of the Council of Ministers considers that the exercise of golden powers in connection with the notified legal transaction is not necessary, an implementing decree of the President of the Council of Ministers must establish simplified fulfillment and procedural provisions. In this case, the applicants – as well as the public administration – can in any case request that the Council of Ministers decide on the notification;
B. Provides for an Executive Order of the President of the Council of Ministers to regulate a pre-notification, to obtain a preliminary assessment of the applicability of the Golden Power Decree to the transaction, and [to determine] the possibility of obtaining authorization directly from the Coordination Group set up in the Presidium of the Council of Ministers; and
C. Introduces a preference for joint ads by all parties involved in a given transaction (including the target company). If the joint filing is not possible, the buyer informs the target company and the other parties involved in the transaction (providing proof of the filing made) so that they can submit briefs and documents to the Presidium of the Council of Ministers in the following 15 days.

5G technology and cloud services

The Decree:

A. extends the scope of art. 1-bis of the Golden Power Decree, relating to broadband electronic communications based on 5G technology and cloud services, to additional strategic assets, relationships and technologies related to cybersecurity, by virtue of one or more Decrees of the President of the Council of Ministers are adopted. These activities are classified as “strategic for national defense and security”; and
B. Provides for prior notification to the Presidium of the Council of Ministers in the case of the acquisition of goods or services related to the design, implementation, maintenance and management of the related activities. Such notice must include an annual plan (to be updated quarterly) that includes, among other things, a detailed description of the transaction, the assets and parties involved, the existing agreements and the business plan related to the 5G networks. The annual plan will be approved (with prescriptions if applicable) or rejected within the following 30 days from the date of notification; and
C. provides for enforcement of the sanctions regime. specific:

  1. Should an agreement be reached prior to the approval of the above plan, the government may order the reporter to restore the previous status at his own expense within a specified period of time.
  2. Failure to notify or breach of the rules imposed by the Presidency of the Council of Ministers may be penalized with penalties of up to 3% of the turnover of the person subject to the notification.
  3. Agreements made contrary to the above provisions are void. The government can also order the reporter to restore the previous situation at his own expense within a certain period of time. Delays in complying with such an order may also result in penalties of up to 1/12th of the applicable penalty per month of delay.

Export of critical raw materials

Further provisions on foreign transactions include export measures. Until July 31, 2022, Italian companies or companies based in Italy must register the direct or indirect export of critical raw materials (including scrap iron) at least ten days before the completion of the relevant transaction with the Ministry of Economic Development and the Ministry of Foreign Affairs. An executive order of the President of the Council of Ministers determines what kind of export transactions related to the supply of raw materials can endanger national interests.

Failure to report such exports may result in the imposition of administrative fines of 30% of the value of the transaction and in any case not less than EUR 30,000 for each transaction.

Conclusions

By virtue of the decree, the government has further increased its powers over transactions and assets deemed strategic to avoid hostile takeovers given the critical political and economic scenario Italy (and the world) is facing. The government has thoroughly reconsidered the strategic nature of certain industries and assets and has decided to extend the golden powers in certain sectors (which no longer have the completion of the pandemic emergency as a deadline) and in relation to any type of investor (regardless of their origin). extend citizenship).

The government has sought to simplify notification procedures and has advocated joint notifications to reduce the number of applications received by the Presidium of the Council of Ministers, noting that the number of notifications received has reached 496 in the last year expanding the scope of assets and transactions covered by the Golden Power Decree is destined to increase the number of such filings in the years to come.

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