On 23 December 2021, the Italian Government extended a significant number of mandatory terms in order to ensure the continuity and efficiency of the administration of the Italian State in the context of the Covid-19 emergency. Among these terms, the Government included also those terms concerning the application of certain emergency provisions connected to the Italian foreign investment review (FIR) regime, also known as “Golden Power”.
In particular, by way of Law Decree No. 228 dated 23 December 2021 (Law Decree 228), the Italian Government decided that the applicability of certain FIR-related provisions – which had been originally introduced in April 2020 to fight the Covid-19 emergency – would extend beyond the then-current expiration date (31 December 2021) up until 31 December 2022. Law Decree 228 was published on the Italian Official Gazette No. 309 dated 30 December 2021 and entered into force on 31 December 2021.
As a result of Law Decree 228, therefore, the following FIR provisions will now continue to apply up until 31 December 2022:
- Transactions, deed and resolutions (i) of entities or individuals that hold assets or contracts in strategic sectors and (ii) which trigger a change of control, ownership or availability of the said assets / contracts or a change in their designated use must be notified to the Government for advance clearance;
- The acquisition, in any shape or form, of shares in companies that hold assets or contracts in the energy, transportation and telecommunications sectors as well as in other strategic sectors must be notified to the Government for advance clearance, if:
(i) the buyer is non-Italian, even if from another EU Member State;
(ii) the purchase is of such relevance so as to allow the buyer to permanently set in Italy as a result of the control being acquired in the strategic company. “Control” can be exercised via:
(x) majority of votes that can be cast at shareholders’ meetings;
(y) sufficient number of votes so as to exercise a dominant influence at ordinary shareholders’ meetings; or
(z) dominant influence that is the result of particular contractual relationships.
- The acquisition, in any shape or form, of shares in companies that hold assets or contracts in the energy, transportation and telecommunications sectors as well as in other strategic sectors must be notified to the Government for advance clearance, if:
(i) the buyer is non-Italian and is from a non EU Member State;
(ii) the acquisition grants the buyer at least 10% of the corporate capital or voting rights in the company being acquired (taking into account also those shares, if any, already directly or indirectly held by the buyer); and
(iii) the aggregate value of the investment is equal to at least EUR 1 million. Also, acquisitions which allow the buyer to exceed 15%, 20%, 25%, and 50% of the corporate capital or voting rights in the company being acquired must be notified to the Government for advance clearance.
It is worth noting that, while the above-outlined FIR provisions were extended for a 1-year term, other provisions concerning other primary matters such as economy and finance, health, education were extended for 6 months only. This factor may suggest that the said FIR provisions – even though originally introduced for a limited period of time to tackle the negative impact of the pandemic on the Italian markets and strategic assets – might become part and parcel of the ordinary Italian FIR regime.
