Italian Government’s "golden powers" of intervention in FDI now allow pre-filing of transactions

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Italian Government’s "golden powers" of intervention in FDI now allow pre-filing of transactions

13 September 2022

Italian government’s so-called "golden powers" of intervention in foreign direct investments involving companies operating in sectors strategic for the national interest were originally introduced by Law Decree No. 21 of 15 March 2012, and subsequently amended and supplemented.

During the last two years, in reaction to the COVID-19 pandemic outbreak and to the economic and humanitarian effects of the Ukrainian crisis, a number of extensions to the government’s takeover screening powers have been enacted, especially to strengthen the protections for national security in strategic sectors.

As a consequence of such extensions, the volume of golden powers filings has significantly increased over time (from no. 8 filing in 2014 to no. 496 filings in 2021).

To efficiently manage the increasing number of golden powers filings the Italian Government, through the Decree of the Presidency of Council of Minister No. 133 of 1 August 2022, published in the Official Gazette on 9 September 2022 ("DPCM 133/2022"), identified the procedures for pre-filing of transactions involving strategic sectors, so as to allow a preliminary assessment by the Italian Government.

What are the changes?

The most significant changes enacted by the regulation approved through the DPCM 133/2022 include methods, terms and procedures for pre-filing of transactions. Such procedures allow economic operators to submit to the Presidency of the Council of Ministers a notice on the transaction they envisage to enter into. This could possibly avoid, within a shorter timeframe of around 30 days, the ordinary FDI filing in case the transaction is either not subject to the golden powers or the Italian Government excludes to exercise its golden powers in relation thereto.

In particular, the most significant changes are the following:

any interested party can submit to the Administrative Coordination Department of the Presidency of the Council of Ministers (Dipartimento per il coordinamento amministrativo della Presidenza del Consiglio dei Ministri - "ACD") a notice providing, to the extent available, all information and documents required for an ordinary FDI notification;
within 30 days, the ACD shall notify to the applicant(s) if the proposed transaction (a) is not subject to golden powers; or (b) is subject to golden powers and shall be formally notified via an ordinary FDI filing; or (c) although being subject to golden powers, there are clear and manifest grounds to exclude the exercise of golden powers by the Italian Government;
in the lack of any response by the ACD within the aforesaid 30-day timeframe, an ordinary FDI notification must be filed;

The DPCM 133/2022, and hence the possibility to benefit from the pre-filing procedure, will come into force on 24 September 2022.

This new regulation is enacted in the context of an increasing interest by the Italian Government in protecting national strategic assets, with a view to strike a balance between enhancing FDI screenings and attracting foreign investments by simplifying and possibly shortening the relevant procedure.

Whats Next?

A Memorandum of Understanding was also signed on July 21^st, 2022 between the Presidency of the Council of Ministers and the Guardia di Finanza (the Italian law enforcement agency responsible for financial crimes) aimed at enhancing the exchange of information between the two institutions in order to, among other things, ascertain any failure to comply with reporting requirements, monitor the implementation of the measures imposed under the golden powers, and verify the actual ownership structures of the companies involved in the transactions.

Please contact the authors, or your usual contact in Hogan Lovells, for any further information.

Authored by Pierluigi Feliciani and Francesco De Michele.