ITALY Trends and Developments Contributed by: Jacopo Gasperi, Gabriella Opromolla, Gabrio Antonioli and Cristina Knupfer, Eptalex – Garzia Gasperi Iannaccone & Partners
Start the analysis early Golden Power needs to be evaluated at the very beginning of a transaction as part of the initial feasi - bility study. This means figuring out if the target is in a sensitive sector, whether the deal structure could trigger a filing obligation, and how it could influence A pre-notification allows the investor to receive a preliminary assessment from the Italian government as to the applicability of the Golden Power regime to the envisaged transaction. This procedure, which is becoming standard practice, is an important tool for reducing uncertainty, but it is crucial to bear in mind that no tacit clearance mechanism applies if the Italian government does not reply within the 30-day review period to complete the assessment. Investor nationality matters but is not decisive While the Golden Power regime was initially designed to protect national security from foreign (mainly non- EU) acquisitions in strategic sectors, the rules have evolved and now apply to both foreign and domestic transactions. Careful structuring the overall transaction. Pre-notification as a tool When structuring a deal, anticipate potential out - comes of the notification requirement and consider how the procedure might affect timelines and what could occur if the government exercises its special powers. The results of this analysis should be reflect - ed in the contractual documents, to appropriately allocate risks.
Co-ordination is crucial Following the most recent changes in the Golden Power legislation, if a transaction in the financial sec - tor, including credit and insurance, is also subject to EU assessment, the Italian government cannot exer - cise special powers until the EU assessment has been completed. Therefore, the deal completion timeline must account for such extended process. Also, the information and documentation submitted under all procedures must be consistent. Co-ordination with banks and financial institutions is also essential in transactions involving complex financial agreements and loan agreements involving strategic Italian assets, in order to take into account the mechanisms and timelines relating to the Golden Power regime. Conclusion Italy continues to be an attractive M&A market in Europe, but it is a market that demands thoughtful planning. Navigating the Golden Power regime is a regulatory necessity that should be addressed by local counsel from the very start, as it may influence the deal’s feasibility, structure, pricing and timeline.
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