ITALY Trends and Developments Contributed by: Jacopo Gasperi, Gabriella Opromolla, Gabrio Antonioli and Cristina Knupfer, Eptalex – Garzia Gasperi Iannaccone & Partners
dated March 19, 2019 – the so-called EU Foreign Direct Investment (FDI) Regulation. Moreover, while the Golden Power regime was initially meant to cover non-Italian and non-EU investors, the amendments that have been enacted over the years have extended its scope so that even purely domes - tic transactions – like reorganisations within Italian groups of companies – may now trigger a notification if they involve a strategic asset in a sector governed by the Golden Power regulations. Consequently, each transaction must be assessed individually to deter - mine whether the Golden Power regime applies, fac - toring in the specific structure of the deal and nature of the assets involved. For instance, in the defence and national security sector, certain transactions involving companies with critical assets could lead to a notification requirement. Strategic assets may involve activities linked to nano - technology, weapons, military or surveillance systems or public safety. Notably, notification rules apply to any buyer regardless of nationality and can include changes to a company’s by-laws. The notification process If the regime is applicable, the relevant party – usually the buyer, or sometimes the target company together with the buyer – must submit a formal notification to the Presidency of the Council of Ministers before com - pleting the transaction. The notification must include detailed information about the parties involved, the transaction structure, the type of strategic assets at play, and the buyer’s plans for the target in the future. Recently, the notification requirement has been extended to the establishment of a new company holding strategic assets, if a non-EU stakeholder owns at least a 10% share. Companies looking to purchase goods or services related to 5G networks and cloud technologies must provide a detailed “annual plan” of their procurement programmes. The government has the authority to approve these plans, even partially, if necessary, and to impose requirements like replacing certain suppli - ers within a certain timeframe, or may even exercise its veto right.
If the parties are unsure whether the Golden Power applies to the envisaged transaction, they can vol - untarily submit a pre-notification to obtain informal feedback from the authorities. According to a report for 2024 presented to Parliament by the Undersec - retary of State to the Presidency of the Council of Ministers, 175 out of 835 filings in 2024 were volun - tary pre-notifications, highlighting their growing use as a risk management strategy when the laws are not immediately clear. After a formal notification is filed, the government has 45 calendar days to complete its review. This period can be paused and restarted if the competent authori - ties request additional information. During this review phase, the transaction is on hold until the government issues a clearance decision, or until the review period runs out without the government’s involvement. Thus, it becomes crucial to incorporate Golden Power time - lines into deal planning from the start to avoid poten - tial delays. At the end of the review, the government has three options: • unconditional clearance, allowing the transaction to move forward without restrictions; • conditional clearance, which permits the deal under conditions imposed by the government; or • a veto, blocking the transaction outright. In 2024, the government invoked its special powers • 18 notifications had conditions or requirements, pursuant to Articles 1 and 2 of the Decree 21/2012; and • 12 annual 5G plans or related updates were approved with specific requirements. In addition, 306 notifications ended without the exer - cise of special powers. In cases where all co-ordinat - ing group members agreed without objections from involved parties, this took place without a Council of Ministers decision; among these, 56 involved trans - actions within the same corporate group. Lastly, 310 32 times, with the following results: • one proceeding resulted in a veto; • one opposed a share purchase;
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