Golden Power: Recent amendmends to the Italian FDI Law take the regime a step forward

The last years have been marked by the progressive tightening by EU Member States of screening mechanisms relating to foreign investments.

The Covid-19 pandemic and the Russian invasion of Ukraine have exacerbated macroeconomic imbalances, causing new international tensions on the markets, therefore contributing towards the acceleration and further development of European government’s “defense” mechanisms vis-à-vis their national companies and strategic assets.

On September 2,  2022, the European Commission published the second version of the Report on the screening of foreign direct investments into the Union[1], which shows that the use of the mechanism has significantly expanded in 2021 throughout the EU.

Main innovations to the Italian FDI Law

Within this context came last May many amendments to the Italian FDI regime, that have very recently been completed by a long-awaited implementing regulation, about to enter into force.

1. The “Ukraine Decree”

Legislative Decree No. 21/2022, “Urgent measures to counter the economic and humanitarian effects of the Ukrainian crisis” (the "Ukraine Decree") converted into Law No. 51 of 20 May 2022, strengthened State control over investments in Italy, enacting significant changes to Legislative Decree No. 21/2012 (the “Italian FDI Law” or “Golden Power Law”).

As it is known, the Golden Power Law grants the Italian Government special powers in relation to certain investments and other corporate transactions, provided such investments or transactions concern strategic assets or activities.

In a nutshell, Law No 51/2022:

• expanded, beyond the emergency phase, the strategic areas: therefore, certain sectors (health, pharmaceutical, agri-food, banking and finance) will remain permanently “strategic”, after December 31, 2022.
• confirmed the notification obligations for non-EU residents also for  minority acquisitions (above 10%)  and, in certain domains (communications, transport, energy, health, agri-food and finance, including banking and insurance) the filing obligation has been extended to persons acquiring control resident or established in the EU, including in Italy;
• provided for a mandatory filing in case of mere incorporation of companies active in strategic sectors or holding strategic assets, whereby the incorporation entails the participation, above a certain threshold, in the shareholding structure of foreign investors (except for the defense and security sector, where a notification is required irrespective of the nationality of the shareholders);
• Introduced an obligation upon companies that intend to acquire goods or services related to the design, manufacturing, maintenance and management of activities relating to broadband electronic communication services based on 5G technology (as well as components with high technological intensity functional to the implementation or management of the aforementioned technology) to submit a detailed annual plan to the Presidency of the Council of Ministers.  The latter will have 30 days to either approve, impose prescriptions or conditions, or veto the purchasing plan.
• Introduced the pre-notification phase, the content of which was however referred to an implementing decree (see below)

2. The implementing regulation: focus on the pre-filing and on other procedural novelties  

The implementing decree regulating the pre-notification procedure was finally published on the Italian Official Journal on September 9, 2022 (Presidential Decree no. 133/2022, the “Procedural Decree”). The date of entrance into force is September 24, 2022.

The Procedural Decree introduces the following principles/rules on pre-filing:

(i) the pre-filing should cover the projects of transactions, deeds, etc. which may fall within the scope of application of the FDI law and shall contain all documents and information required for the formal notification (to the extent available at the timing of the pre-filing)

(ii) the pre-filing must be submitted in any case without breaching the mandatory terms for the formal filing (“without prejudice to the obligation to comply with the terms for the notification”)

(iii) the Italian Government has 30 days to render its decision which can result into the following:

(a) the transaction does not fall within the scope of Italian FDI Law and therefore no formal notification is needed;

(b) the transaction may fall within the scope of Italian FDI Law and should therefore be notified;

(c) the transaction fall within the scope of the FDI Law, but it is manifestly clear that there is no need to exercise the special powers.

By rendering its decision on the pre-filing, the Presidency may also issue recommendations and, regardless of the outcome above, impose to the parties to notify the transaction.

A new template form with the required information to be included in the pre-filing may be published on the website of the Presidency of Council of Ministers.

Other procedural amedments are the following:

• in case of acquisitions, Law 51/2022 provided for a joint-filing by both the investor and the target entity, where possible. In the absence of a joint filing, the target company has to be in any case notified in advance by the buyer of the filing ant its content;
• Specific rules on sanctions-related procedure have been introduced, granting the affected party the right to present defences, being heard and being given access to the acts of the proceeding, before the formal imposition of fines;
• a coordination mechanism among the Golden Power Office and other public authorities, such as the Antitrust Authority (AGCM) and the Financial Police (‘Guardia di Finanza’), has been encouraged and is currently in the course of being implemented through the adoption of internal protocols;
• the internal procedure of the Presidency of Council of Ministry including the timing of transmission of the notification among offices, has been revised, without any substantial change; a “fast-track” procedure, which allows a simplified decision without the intervention by the Presidency of the Council of Ministers, has been confirmed. Accordingly, intra-group transactions, which are still subject to mandatory filing, benefit from the simplified procedure (with a final decision therefore issued usually much earlier than the 45 days set out by the Law)

The content of this article is for information purposes only and is not, and cannot be intended as, professional advice on the matters dealt with. For further information please contact:  Francesco Mazzocchi, Giuliano Berruti and Linda Lorenzon.

[1] The Report is available at the following link: https://ec.europa.eu/commission/presscorner/detail/en/ip_22_5286