Italy: Extension of the Golden Power


published on 16 April 2020 | reading time approx. 2,5 minutes


Decree no. 23 of 8 April 2020 published in the Official Gazette on 9 April 2020
The so called “Liquidity Decree” has significantly strengthened and extended, although temporarily, the special powers of the executive power in relation to areas considered as strategic and of national interest.




Golden Power: what it is

In order to safeguard the structures of companies operating in areas considered strategic and of national interest, Decree Law no. 21 of 15 March 2012 (converted with amendments by Law no. 56 of 11 May 2012) regulates the special powers that can be exercised by the Government in the defence and national security sectors, as well as in certain areas considered of strategic importance in the energy, transport and communications sectors.
With reference to “assets and relationships of strategic importance for the national interest” expressly identified, the Decree Law. no. 21/2012 provides for an obligation to notify any resolution, act or transaction involving such assets and having the effect of modifying their ownership, control or availability in favour of entities outside the European Union, or of changing their destination, as well as any resolution relating to companies holding such assets, which provides for a change of the corporate purpose, the winding-up of the company and the modification of statutory clauses which, in relation to the quantity of shares held by the same party, limit the right to vote to a maximum extent or provide for staggered voting rights.
Pursuant to Decree Law No. 21/2012, notification is also required for transactions related to the purchase by entities outside the European Union of controlling interest in companies that hold assets identified as strategic.
In relation to a "threat of serious prejudice" to the public interest, the Government is entitled to exercise, on the basis of objective and non-discriminatory criteria, different powers depending on the case, ranging from opposition to the purchase of shares to vetoes to the adoption of corporate resolutions and imposition of specific requirements and conditions.

The measures introduced by the Liquidity Decree

The Liquidity Decree has undoubtedly strengthened and expanded the Golden Power, first of all by extending, until 31st December 2020, the obligation to notify to new sectors considered strategic in light of the health and economic emergency caused by Covid-19 (including the food safety, insurance, health, financial and cybersecurity sectors). The obligation to notify is also introduced, again until 31st December 2020, in relation to the purchase of controlling shares also by foreign entities belonging to the European Union, as well as to the purchase by entities outside the European Union of interest attributing a share of voting rights or capital equal to or greater than 10 per cent (if the total value of the investment is at least equal to one million euros), as well as to acquisitions that result in exceeding the participation thresholds of 15, 20, 25 and 50 per cent.
The Liquidity Decree also intervenes on the powers of the Government, recognising - in addition to the pre-existing possibility of sanctioning with nullity the transactions carried out in the absence of mandatory notification - the power to intervene ex officio on transactions not notified and to possibly exercise the special powers, as well as the power to request from public administrations, public and private companies, information and documents useful during the investigation phase, possibly preliminary to the exercise of the special powers.

Some considerations

It is clear that, although the measures described above are provided with limited temporary effectiveness, the rules introduced by the Liquidity Decree may significantly discourage foreign investors from investing in our country. It remains to be understood how, once the current emergency has been overcome, the Government will concretely exercise the powers so far provided on paper.

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