The Law Decree No. 21 of 15 March 2012, converted by

Law No. 56 of 11 May 2012, introduced a new set of special powers for the

Italian Government in relation to strategic sectors such as defence and national security, energy,

transport and communications.

The Law Decree No. 21 of 15 March 2012, converted by

Law No. 56 of 11 May 2012, introduced a new set of special powers for the

Italian Government in relation to strategic sectors such as defence and national security, energy,

transport and communications.

Contrary to the previous Italian legislation on the

“golden share”, which was applicable to companies operating in the defence,

energy, transport and communication sectors, directly or indirectly controlled

by the State, the new rules and special powers (a.k.a. “golden powers”) set

forth by the Law Decree no. 21/2012 apply to the companies, irrespective of

whether the State is their shareholder or not, which (i) carry out strategic activities deemed to be of strategic

importance in the defence and national security sectors, (ii) and in relation to companies holding assets deemed of

strategic importance in the fields of energy, transport and communications.

The Decree no. 21/2012 grants two distinct sets of

powers: one for the defence sector and one for the energy, transport and

communication sectors.

In both cases, the special powers attributed to the Italian Government and the conditions

under which such special powers may be exercised are now subject to stricter

and more objective limitations to comply with EU laws and to address the EU

Court of Justice’s proceedings against Italy. The conditions for the exercise

of the golden powers are, now, proportional, reasonable, clearly defined, non-discriminatory and objective.

Rules

applicable to the defence and national security sectors

In the defence and national security sectors, in

particular, when a company’s activities threaten serious damage to the

essential interests of defence and national security, the Italian Government may exercise the special powers in

the following cases:

a)       The

purchase, in any capacity, of shareholdings in a strategic business;

b)       The

adoption of shareholders’ resolutions

related to corporate transactions such as mergers, demergers, transformation

and dissolution of the company, transfer of business branches, amendment of

statutory provisions and changes to the business purpose of the company.

c)       The

acquisition of holdings by entities other than the Italian State or Italian

public bodies, should the acquiring party come to hold directly or indirectly a

level of interest in the capital with voting rights that is sufficient to

compromise the defence and national security;

In the first case, specific conditions may be imposed

in relation to the security of supply, the security of information,

technological transfers and the control of exports.

In the second case, a veto may be exercised by the

Italian Government.

In the third case, the right to oppose the purchase

may be exercised by the Italian Government.

To render possible the exercise of its veto power, the

company shall notify to the Italian Government a complete report about the resolution or the action to be

taken.

Within 15 days following the notification, either the

Italian Government exercises its veto or the transaction may be implemented.

Resolutions and actions adopted in breach of these

provisions are ineffective, a fine may be imposed and the Italian Government

may order the original conditions and status to be restored.

Any non-compliance with the order to restore the

original status quo is punishable

with a maximum fine of twice the value of the transaction, and in any case not

lower than the 1% of the revenues generated by the companies involved during

the most recent fiscal year for which

financial statements have been approved.

Rules

applicable to strategic assets in the communications, energy, transportation

sectors

The Law Decree No. 21/2012 defers to further ministerial decrees the

identification of assets, networks, plants and relationships of strategic

importance. With respect to them any resolution, act or transaction placed into

effect by a holding company, concerning changes in ownership, control or the

availability of the strategic assets, is to be reported to the Government in

advance. The Government may exercise its veto power in the event that:

(i)       Any resolution, actions or operations that may give

rise to serious and actual risks for the public interest in connection with the

operation of the energy transmission grids, energy plants and the consistency of

energy procurements;

The companies have to notify to the Italian Government

these acts, resolutions or transactions within 10 days with all details.

Not later than 15 days from the notification, the Italian Government have to

communicate the veto.

Any resolutions and actions adopted in breach of these

provisions are ineffective, and the Government may order the pre-existing

conditions and status to be restored. Also, in

this case, any non-compliance with the order to restore the original

status is punishable with a fine calculated with the same criteria mentioned

above.

Moreover, the Law-Decree 21/2012 provides a specific

procedure for the purchase of a shareholding by non-EU residents, in a company

that owns strategic assets, sufficient to cause this subject to have permanent

establishment as a result of the acquisition of the control of the company it

is acquiring.

In fact, this subject has

to notify to the Italian Government this purchase within 10 days with all relevant

information related to the operation and the

purchaser.

If this purchase is likely to give rise to serious and actual risks to the public

interests, the Italian Government, not later than 15 days from the notification,

can either impose specific undertakings to ensure the safeguard of the

interests at issue; in exceptional cases, when the aforementioned procedure is

not sufficient, the Government can exercise the right to oppose the purchase.

The Italian Government can exercise this right based

on objective and non-discriminatory criteria.

After the Law Decree No.

21/2012, the Prime Ministerial Decree 6 June 2014, n.

108 expressly identified the strategic assets and the Presidential Decree 19

February 2014, n. 35 sets out the procedural rules for the exercise of special

powers such as the content and validity requirements of the notification, the

parties responsible for the submission of the preventative notification, the

investigation procedure and the authorities involved.

Endnotes

(1) See the Law Decree No. 21 of 15 March 2012,

converted by Law No. 56 of 11 May 2012.

(2) See the Prime Ministerial Decree 6 June 2014, n. 108

(3)See the Presidential Decree 19 February 2014, n. 35