1. Overview

On 18 December 2020, the Italian Government issued implementing rules identifying which assets within the sectors listed in the EU FDI Regulation will be deemed “strategic” for Italian foreign investment review (FIR) purposes. These implementing rules will enter into force on 14 January 2021 (New Implementing Rules). The EU FDI Regulation, which became fully operational on 11 October 2020, specifies certain factors and sectors that Member States may take into consideration when deciding whether a foreign investment is likely to affect security or public order under domestic FIR regimes (EU-Regulated Sectors). It did not create a general EU FIR screening regime, or give the European Commission powers to block domestic investments on FIR grounds. Please see our client alert accessible here for further information on the EU FDI Regulation.

2. Italian FIR and EU FDI Regulation

By way of background, the Italian FIR regime applies to any direct and indirect share transfer, asset/business transfer, merger, demerger or similar acquisition transaction, or resolution, that involves a change of control over a company holding “strategic” assets in certain specified industries. Such changes of control require prior notification to, and approval from, the Italian Government.

Upon enactment of the Italian FIR regime in 2012, the industry sectors covered by the Italian FIR regime initially were: defence and homeland security, energy, transportation and telecommunications. This was subsequently widened in 2019 to cover the EU Regulated Sectors, namely critical infrastructure (such as water, health, media, data processing or storage, electoral or financial infrastructure, and sensitive facilities), critical technologies and dual use items  (including AI, robotics, semiconductors, cybersecurity, energy storage, quantum computing, supply of critical inputs and nuclear technologies as well as nanotechnologies and biotechnologies), food security, sensitive information (including personal data), and media freedom and plurality. The Italian Government has also added the following industry sectors: banking, finance and insurance, and production, import and distribution of medical and surgical devices and PPE.

3. What has changed?

Up to this point, unlike the sectors incorporated in 2012, the Italian Government had not specifically identified which areas within the EU-Regulated Sectors were deemed “strategic” (and therefore would trigger a filing obligation) under the Italian FIR regime. It was therefore unclear to what extent the Italian rules applied to transactions in EU-Regulated Sectors, and whether such transactions required FIR filings.

The New Implementing Rules have finally shed light on this, and specifically identify “strategic” assets within the sectors listed in the EU FDI Regulation. This should provide increased clarity and regulatory certainty, particularly given that the mandatory, pre-close nature of the Italian FIR regime means that filing requirements need to be addressed at an early stage of the transaction planning process. These changes are likely to be welcomed by investors and companies, who will now be able to rely on a clearer set of FIR rules to assess whether transactions in the EU-Regulated Sectors require a FIR filing in Italy.

Author

Antonio Lattanzio is a Counsel of the Corporate / M&A practice. Antonio has extensive experience in cross-border corporate reorganizations and restructuring transactions (including mergers, de-mergers, contributions, capital increases, asset deals and share deals) with a focus on regulated sectors such as healthcare, telecommunications, energy and transportation. He regularly represents and advises clients on foreign investment restrictions reviews which are administered by the Italian Prime Minister's Office.

Author

Raffaele Giarda leads the Global Technology Media & Telecoms Industry Group of Baker McKenzie and co-heads the IPTech and Corporate/M&A practices in the Firm's Italian offices. He assists multinational and domestic clients in the TMT sector on M&A, corporate law and commercial matters, advising also on regulatory issues in strategic sectors. In this respect, Raffaele has contributed articles to law journals, moderated Italian and international conferences and seminars on tech legal and regulatory matters, as well as lectured at the University of Rome and the National School for Public Administration on foreign investment rules.

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