Under the Law Decree 15 March 2012, n. 21, the Government is entitled to exercise special powers (the “Golden Powers”) to limit the foreign investments in Italian non-listed companies active in the following strategic business sectors: (i) defence and national security, (ii) energy, (iii) transport, (iv) communications, or (v) high-tech sectors.
Moreover, the Law Decree 21 September 2019, n. 105 entitles the Government to exercise Golden Powers to limit the investments in companies active in the business sector of broadband telecommunications networks based on 5G technology (collectively, the “Strategic Sectors”).
Basing on the Strategic Sectors, the Italian law requires to comply with the notification obligation to the Government. Such notification shall be filed within 10 days of the acquisition in case of:
- relevant resolutions (relating to merger, de-merger, incorporation, asset deals), adopted by any Italian (listed and non-listed) company active in all the Strategic Sectors;
- purchase of interests in any Italian non-listed company active in the defence and national security sector; and
- purchase of interests by non-EU entities in any Italian (listed and non-listed) company, active in the (i) energy, (ii) transport, (iii) communications, (iv) high-tech, and (v) 5G technology sectors.
Giving the Covid-19 emergency, the Italian regulatory of foreign investments in non-listed companies was amended by the Law Decree 8 April 2020, n. 23 (so-called “Liquidity Decree”).
The Liquidity Decree entitles the Government to exercise Golden Powers also in the investments relating to the business sectors listed in Article 4 Paragraph 1 of EU Regulation 2019/452.
The business sectors listed in above-mentioned EU Regulation are divided into the following 5 categories: (i) critical infrastructure, including energy, transport, water, health, communications, media, and financial infrastructure (which includes, under the Liquidity Decree, the credit, banking and insurance sector; (ii) critical technologies and dual use products, including artificial intelligence, cyber-security, nanotechnology and biotechnology; (iii) security of supply of critical inputs, including energy and raw materials, and food security; (iv) access to, or the ability to control, sensitive information, including personal data; and (v) media freedom and pluralism. (the “Liquidity Decree Strategic Sectors” and collectively with the Strategic Sectors, the “Current Strategic Sectors”).
Basing on the Liquidity Decree Strategic Sectors, under Art. 15 of the Liquidity Decree, until 31 December 2020, the notification obligations to the Government shall be complied with in case of:
- relevant resolutions (relating to merger, de-merger, incorporation, asset deals), adopted by any Italian (listed and non-listed) company active in all the Liquidity Decree Strategic Sectors; and
- purchase of interests (by both EU and non-EU entities) in any Italian (listed and non-listed) company that holds assets or has relations in all the Liquidity Decree Strategic Sectors.
Furthermore, until 31 December 2020, the notification obligations to the Government shall be complied with in case of:
- purchase of interests by EU entities (in addition to non-EU entities) in any (listed and non-listed) Italian company active into the (i) energy, (ii) transport, (iii) communications, (iv) high-tech, and (v) 5G technology sectors – even if the purchase of interests is performed by a public administration of a EU Member State; and
- purchase of interests by non-EU entities in any Italian (listed and non-listed) company active in all the Current Strategic Sectors exceeding the threshold of: (i) 10 % of share capital or voting rights, with an investment of an economic value exceeding EUR 1,000,000; or, in any case, (ii) 15 %, 20 %, 25 % and 50 % of the share capital in Italian companies.
As far as companies operating in regulated sectors are concerned, regulators apply strict procedures to assess the kind of investments and the reliability of investors. These procedures may take several months.