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Clifford Chance

Clifford Chance

Antitrust/FDI Insights

Recent amendments to the Italian Golden Power regime: the pre-notification procedure

The Italian government has (finally) introduced a prenotification procedure in the Italian investment screening mechanism, which allows companies to obtain a preliminary assessment on the applicability of the Italian Golden Power regulation to proposed transactions

Background

The Italian 'Golden Power' regulations provide the Italian Government with the power to impose specific conditions or exercise a veto in relation to transactions, investments or corporate resolutions that could threaten or prejudice essential Italian public interests.

Over time, its scope of application has been progressively tightened and extended to many more strategic sectors, transactions and (even Italian) investors.

Furthermore, in the last few years, the Italian government has adopted a distinctly broader interpretative approach as to what activities or assets are considered as 'strategic' and, as such, relevant for the purposes of the Golden Power screening.

In such a complex and ever-changing context, the self-assessment on the applicability of Italian Golden Power regulations to transactions with an Italian nexus is becoming increasingly challenging. Moreover, it is worth noting that the Italian Golden Power regulatory framework does not include any guidelines or soft-law provisions that would help companies and their advisers to assess accurately the strategic relevance of their activities and the case law is extremely limited.

The abovementioned circumstances have thus led to an exponential increase in the number of notifications (often made on a purely precautionary basis).

Primarily to address these inefficiencies and challenges, the decree of the President of the Council of Ministers No. 133 of 1 August 2022 ("DPCM 133/2022"), published on 9th September 2022 on the Italian Official Journal, amended the Golden Power regulations by introducing a number of measures to better coordinate and streamline the activities of the Italian government's departments responsible for examining transactions, and a very long-awaited voluntary prenotification procedure.

Prenotification procedure

The prenotification procedure – which will enter into force fully on 24 September 2022 – allows companies to request the Italian Presidency of the Council of Ministers to assess whether the transaction falls within the scope of the Golden Power regime before filing a formal notification.

More specifically, companies may file a prenotification of a proposed incorporation, acquisition, resolution, deed or transaction providing, however, all documents and information – to the extent available – required for the formal notification.

This means that the prenotification can be submitted even before signing, but the main terms and conditions must already be agreed upon in order to allow the Coordination Group – the body of the Presidency designated for this preliminary review – to effectively examine the proposed transaction.

Within 30 days of the prenotification, the Coordination Group shall inform the company(ies) that:

(a) the proposed transaction does not fall within the scope of the Golden Power Regulation, and therefore no formal notification is due;

(b) the proposed transaction is likely to fall within the scope of the Golden Power Regulation, in which case the company is required to submit a formal filing; or

(c) the proposed transaction falls within the scope of the Golden Power Regulation, but there are clearly no grounds for the exercise of the powers.

If no decision is adopted within thirty days of the prenotification, the company is required to file a formal notification.

Future application and take aways

Prenotification undoubtedly speeds up the process of assessing whether a transaction is caught by the Golden Power regulations, but it may not be the most appropriate strategy to all transactions.

This procedure may be indeed extremely useful in all those cases where the transaction is not likely to trigger a notification requirement.

On the other hand, if the transaction is likely to be caught by the Golden Power screening regime, the interested company(ies) should carefully consider the usefulness of filing a prenotification, as it may take up to 30 days to obtain such confirmation from the Coordination Group, to which would eventually be added the 45-calendar day period for the formal notification, if that is confirmed to be required.

Finally, as we wait for the Coordination Group's practice on prenotification, investors should thoroughly evaluate the use of this procedure, so as to effectively manage the timeline of the transaction.