ITALY Law and Practice Contributed by: Paolo Balboni, Luca Bolognini, Giulio Monga and Carmine Antonio Perri, ICT Legal Consulting
11.4 Independent Outside Advice Italian law does not impose a general obligation for directors to obtain independent outside advice in con- nection with M&A transactions. However, boards commonly obtain external advice such as: • fairness opinions from independent financial advis- ers assessing the adequacy of the offer price or exchange ratio; • legal opinions verifying regulatory compliance, contractual validity and potential risks; • fiscal and tax advice; and • technical and legal due diligence reports, particu- larly in technology-driven acquisitions, covering subjects such as intellectual property, data protec- tion, AI and cybersecurity.
When a listed company is the target of a public offer, the board’s duties are governed by Articles 103 and 104 TUF. The board must issue a reasoned opinion to share- holders evaluating the offer, its industrial and financial rationale, and its potential effects on the company, employees and stakeholders. While the board may negotiate with the bidder or seek alternative offers, it cannot adopt defensive measures that could frustrate the offer (such as capital increases, asset disposals or new share issuances) without prior authorisation from the shareholders’ meeting. This is the so-called “passivity rule”, established under Arti- cle 104 TUF. In Italy, shareholder litigation challenging board rec- ommendations in public tech M&A is relatively uncom- mon, but may arise where procedural fairness or disclosure is contested. Buyers who support a trans- parent and well-documented process – involving an independent committee, a fairness opinion, accurate disclosure and proportionate deal protections – sig- nificantly reduce both the likelihood and the impact of post-signing challenges.
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