Decree Law no. 23, published in the Official Journal of April 8, 2020, ("Decreto Liquidità") amended Decree Law no. 21/2012 granting special powers to the government in relation to companies involved in activities deemed strategic for the national interest (Golden Power Decree).

Decreto Liquidità broadens the scope of the government's special powers to sectors excluded until now and extended the notification obligations to transactions carried out by foreign EU and non-EU entities.

The regulation, in force since April 9, 2020, is aimed at containing the negative effects of the epidemiological emergency from COVID-19 on assets of national strategic importance and has a limited duration until December 31, 2020.

Which transactions are subject to notification?

The Decree extends the scope of the Golden Power to companies involved in the security of supply of critical production inputs as well as food safety. These companies have the obligation to notify about resolutions, acts and transactions that change the ownership, control, availability or change of destination of assets, and relationships held by companies operating in the following sectors:

(a) Critical infrastructure, whether physical or virtual, including energy, transport, water, health, communications, media, data processing or storage, aerospace, defense, electoral or financial infrastructure, and sensitive facilities, as well as investments in land and buildings essential for the use of such infrastructure;

(b) Critical technologies and dual-use products including artificial intelligence, robotics, semiconductors, cybersecurity, aerospace, defence, energy storage, quantum and nuclear technologies, as well as nanotechnology and biotechnology;

(c) Security of supply of critical inputs, including energy and raw materials, and food security;

(d) Access to, or the ability to control, sensitive information, including personal data;

(e) Media freedom and pluralism.

This includes the financial services, credit and insurance sectors.

Which shareholding acquisitions are subject to notification?

Pending further clarification from the Presidency of the Council, it could be surmised that for EU-based foreign acquirers the notification obligation arises in relation to the acquisition of shareholdings of such importance as to affect the permanent establishment of the acquirer.  The notification obligation exists when the target company is active in the energy, transport, communications or sectors listed in points a) to e) of the previous section.

With reference to the same sectors, for non-EU entities, the notification obligation is extended to the acquisition of shareholdings of at least 10%, taking into account shares or quotas already directly or indirectly held in advance, by entities of a foreign country not belonging to the European Union. Acquisitions that exceed the thresholds of 15%, 20%, 25% and 50% are also subject to the notification requirement.

What is the duration of the new provisions?

The new provisions are temporary until December 31, 2020.

The acts and measures adopted by the Presidency of the Council of Ministers following the exercise of special powers will remain valid after December 31, 2020.

What are the prerequisites for the exercise of special powers?

The Presidency of the Council of Ministers may activate special powers to the extent that the operation involves a threat of serious damage to the essential interests of the state, or a danger to the protection of security and public order in cases where the protection of those interests is not adequately guaranteed by sector-specific regulations.

What are the special powers of the government?

The special powers, to be applied on the basis of objective and non-discriminatory criteria, may consist of the imposition of prescriptions or conditions. In exceptional cases, when the risk cannot be eliminated through the adoption of the above-mentioned measures, the government may oppose the acquisition or the adoption of a resolution.

Can the government institute the Golden Power procedure ex officio?

The government has the power to initiate the procedure ex officio in the event of non-notification.

In such a case, the deadline for the exercise of the powers set at 45 days (or 30 days in the case of 5G broadband electronic telecommunications networks) starting from the conclusion of the procedure establishing the breach of the notification obligation.