FDI regulation in Italy and the new provisions enacted in relation to the Covid-19 pandemic

Pierluigi Tusino

RP Legal & Tax, Turin

Pierluigi.Tusino@rplt.it

Marco Gardino

RP Legal & Tax, Turin

Marco.Gardino@rplt.it

Mario Ferrari

RP Legal & Tax, Turin

Mario.Ferrari@rplt.it

Under the Italian foreign direct investment (FDI) legislation – known as the ‘golden power’ regime –  the Italian Government is entitled to run a specific review of transactions relating to foreign investments involving:

• companies which carry out activities defined as ‘strategic’ in the defence and national security, 5G technology, energy, transportation and communications sectors; and
• companies which own assets defined as ‘strategic’ in the Italian territory in the aforementioned sectors.

The law provides for notification obligations around these transactions to the Italian government for assessment. The government may:

• veto the transactions;
• request the satisfaction of certain conditions; or
• deem the corporate transaction free from threats to the national interest and provide execution clearance.

The legal framework before the Covid-19 pandemic

Law Decree No 21, dated 15 March 2012, was the first dedicated piece of legislation enacted to regulate the golden power regime in Italy. Throughout the years, the legislation was amended with several additional layers of provisions that better identified the scope and the modalities of the potential exercise of the golden power.

On 19 March 2019, Regulation 2019/452/EU of the European Parliament and of the Council was enacted, which set up a broad European legal framework to control FDI in Europe. This affected the golden power regulation in Italy.[1]

The legal framework enacted during the Covid-19 pandemic

The golden power legislation underwent significant changes due to the Covid-19-related emergency provisions, with new amendments introduced as recently as 30 December 2021.

Law Decree No 23 of 8 April 2020 introduced broad measures aimed at strengthening the monitoring of foreign investments in Italian companies, as well as ensuring transparency in the capital market. After this initial intervention, two Prime Ministerial Decrees (Nos 179/2020 and 180/2020) were enacted, providing a new list of strategic sectors relevant for the golden power legislation:

• Prime Ministerial Decree No 179/2020 identified specific assets and business relations of strategic significance for the national interest, articulated by industries and areas; and
• Prime Ministerial Decree No 180/2020 identified specific assets of strategic interest in the energy, transport and communications industries.

The industries and areas indicated by Prime Ministerial Decree No 179/2020 were:

• assets and business relations in the energy industry;
• assets and business relations in the water industry;
• assets and business relations in the healthcare industry;
• assets and business relations in the areas relating to the processing, storage, access and control of sensitive data and information;
• assets and business relations in the area of electoral services;
• assets and business relations in the financial industry, including credit and insurance, and financial market infrastructure;
• assets and business relations in the artificial intelligence, robotics, semiconductor, cybersecurity, nanotechnology and biotechnology industries;
• assets and business relations in the non-military aerospace engineering and technology industries;
• assets and business relations concerning the supply of production resources and in the agro-industrial industry;
• the dual use products industry; and
• assets and business relations in the media industry.

The assets of strategic interest in the energy, transport and communications industries indicated by  Prime Ministerial Decree No 180/2020) were:

• the national natural gas transmission network and the relevant compression stations and dispatching centres, as well as gas storage facilities;
• electricity and gas supply infrastructure from other countries, including onshore and offshore liquefied natural gas (LNG) regasification facilities;
• national electricity transmission grid and related control and dispatching facilities;
• management activities and essential properties relating to the use of the networks and infrastructures referred to in the above bullet points;
• ports of national interest;
• airports of national interest;
• national spaceports;
• national railway network of importance for trans-European networks;
• freight terminals of national importance;
• road and freeway networks of national interest;
• dedicated networks and the public access network to end users in connection with metropolitan networks, service routers and long-distance networks;
• installations used for the provision of access to end users of the services included in the universal service obligations and broadband and ultra-wideband services, and in the related contractual relationships, without prejudice to the provisions of Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016; and
• dedicated assets, even in case the use is not exclusive, for connectivity (voice, data and video), security, control and management relating to telecommunications access networks at a fixed location.

Considering that the list of strategic industrial sectors and assets was significantly broadened, the provisions of Law Decree No 23 and the Prime Ministerial Decrees resulted in a set of strengthened veto rights for the Italian government in relation to FDI transactions.

This strengthened golden power regime concerned two main areas:

• the resolutions, activities or transactions passed by an entity holding assets and business relationships of strategic interest in the areas indicated in Article 4, paragraph 1 of Regulation (EU) 2019/452 (it should be noted that this provision of Law Decree 105/2019 states that the credit and insurance industries are included in the financial industry) as well as the resolutions, activities or transactions referred to in Prime Ministerial Decree 179/2020, that result in a change in the ownership or control of said assets or a change in their use (Article 4 bis, paragraph 3 bis, letter a), of Law Decree 105/2019);
• in relation to the assets and business relations described in Prime Ministerial Decree 180/2020 (energy, transportation, communications) and the assets and business relations indicated above:
  • the acquisition of participations, for any reason, by foreign entities, including those established in the European Union, ‘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, pursuant to Article 2359 of the Italian Civil Code and the Consolidated Act [Testo Unico] referred to in Legislative Decree No 58 of 24 February 1998’;
  • ​​​​​​​the acquisition of participations by foreign entities not established in the European Union, ‘which represent a share of the voting rights or of the share capital of at least 10 per cent, 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’; and
  • the transactions which trigger the acquisition of shares exceeding ‘the thresholds of 15%, 20%, 25% and 50% of the share capital’, (Article 4 bis, paragraph 3 bis, letter b), of Law Decree 105/2019.

This set of strengthened powers represents a new chapter of the golden power regime in Italy, as the Italian Government is entitled to run a specific review of transactions relating to FDI in relation to foreign entities established in the European Union.

In relation to the corporate transactions which fall outside the scope of the veto rights of the Italian government, both aforementioned Prime Ministerial Decrees also indicated that the exercise of the golden power by the Italian government is not applicable to resolutions, deeds or transactions that are executed within the context of the same group of companies relating to mergers, demergers, incorporations or transfers of shares, when the respective resolutions executed by the shareholders or the managing bodies of a company to which the golden power regulation applied to do not entail:

• the transfer of business as a going concern or branches of the company or transfer of business as a going concern or branches of subsidiaries of the company;
• transfer of the registered office of the company;
• amendments to the corporate purpose of the company;
• winding up of the company;
• amendments to certain provisions of the by-laws of the company relating to establishing thresholds to the voting rights of certain shares or thresholds to the percentage of share capital a shareholder may hold in the company; or
• transfer of in rem rights or rights of use relating to tangible or intangible assets of the company, or entering into agreements with constraints affecting the use of said tangible or intangible assets of the company.

In any case, the law provides for a notification obligation to the Italian government for the aforementioned intra-group corporate transactions.

The term of effectiveness of the provisions governing the exercise of the special set of powers provided for by the golden power regime was originally set for 31 December 2020, subsequently extended to 31 December 2021 and then extended again to 31 December 2022.

Conclusion

The golden power legislation was implemented to ensure that, within the context of FDI, no threat may arise to companies which carry out strategic activities or own strategic assets in the Italian territory.

Within the context of the Covid-19 pandemic, the special powers of the Italian government under the golden power legislation were significantly strengthened and the scope of the relevant strategic sectors was broadened.

As of today, the Covid-19 related emergency provisions governing the Italian government’s exercise of the golden power and the related notification obligations on companies are in force until 31 December 2022. In any case, the regime will continue to apply to several transactions in its ‘standard’ configuration even after this date.