In the context of the emergency measures adopted by the Italian Government to face the COVID-19 emergency, the Law Decree no. 23 of 8 April 2020 (so called “Liquidity Decree”)  adopted by the Italian Government has affected also the Golden Power Regime, whose scope of application had already been expanded with the adoption of the Law Decree no. 105 of 21 September 2019 (as converted into Law n. 133 of 18 November 2019) that included also – subject to the adoption of an implementing regulation – enterprises operating in the sectors listed in Article 4(1) of the EU Regulation no. 2019/452 on foreign direct investment screening. Law Decree no. 105 also provided that, notwithstanding the adoption of an implementing regulation, sectors listed in Article 4 (a)[1] and (b)[2] of Regulation no. 2019/452 are subject to the golden power regime with immediate effect.

The Liquidity Decree, on the one hand, extends the boundaries of the immediate application of the golden power regime, so to include the entire set of sectors listed in Article 4 of Regulation 2019/452, and on the other widens the scope of application of the golden power regime, including among the companies having a strategic importance, thus being subject to the notification obligations for golden power purposes following a relevant purchase of shares[3], also companies operating within the financial, credit and insurance sector.  While the extension of the golden power regime to these sectors seems to find a permanent place in the general regulation, the Government has adopted interim measures specifically aimed at containing the negative effects of the COVID-19.

On this regard, until 31 December 2020, the notification obligation applies also to:

  • decisions, acts and/or operations adopted or carried out by a company holding assets and commercial relationship in the sectors indicated in article 4, paragraph 1, letters a), b), c), d) and e) of the EU Regulation 2019/452, including the financial, credit and insurance sector (or those included in the implementing regulation referred to above, once in force), having the effect of modifying the ownership of the control or availability of such assets or modifying their use, even if these decisions, acts and/or operations have an intra-EU dimension;
  • purchases of shares (or units) of Italian companies having a strategic importance for the national interest in the sector of energy, transport, communication as well as in the sectors indicated in article 4, paragraph 1, letters a), b), c), d) and e) of the EU Regulation 2019/452, including the financial, credit and insurance sector (or those included in the implementing regulation referred to above, once in force) by:
    • an EU company acquiring the control of the company (within the meaning of the civil code and the Financial code); or
    • a non-EU company acquiring voting rights of at least 10% (as well as when exceeding the thresholds of 15%, 20%, 25% and 50%), also considering the shares (or units) already directly and indirectly held and the value of the investment is at least of €1,000,000. The obligation to notify applies when the purchase leading to the acquisition of the control (as per the previous point).

Furthermore, in order to assess whether a foreign investment has an impact on the security and the national public order, so that it falls within the scope of the golden power regime, the Liquidity Decree provides that the competent authorities shall take into account the fact that the purchaser is directly or indirectly controlled by a foreign public administration of a country, including an EU Member State, through ownership or a consistent financing. 

As per the 5G technology, the Liquidity Decree has specified that when assessing whether to exercise the golden power, the relevant authorities shall take into consideration also the existence of vulnerability factors that may compromise the integrity and security of the networks and of the data flowing through such networks, including those identified on the basis of principles and guidelines developed internationally and by the European Union (the immediate reference may be to the EU Commission’s document “Cybersecurity of 5G networks - EU Toolbox of risk mitigating measures”).

Finally, the Liquidity Decree provides that the Italian Government may proceed ex officio when it detects operation falling within the golden power regime which are not notified. In this case, beside imposing the sanctions provided for in the golden power legislation, the Government may initiate investigations for the possible exercise of the golden powers.

Due to the legal features of the Law Decree under the Italian legal system, it remains in force for sixty days from the date of publication on the Official Journal (8 April 2020) and may be subject to modifications upon conversion into State Law.