During the conversion into law process, the Italian Legislator, with the aim of safeguarding the ownership structures of companies operating in sectors considered as strategic and of national interest strongly threatened by the spread of Covid-19, further specified the operation of the special powers that can be exercised by the Government and defined in more detail some areas to be protected.
Law Decree no. 23 of 8 April 2020 (the so-called "Decreto Liquidità ") - containing, among other things, certain provisions aimed at extending the operation of the Government's Golden Power - was converted by Law no. 40 of 5 June 2020, published in the Official Gazette of 6 June 2020. For a first comment on the amendments introduced by the Decreto Liquidità, please refer to our article of 17 April 2020 (http://www.macchigangemi.com/en/insights/newsletter-n-1-mpa-mdr-eng/).
Article 15 of the Decreto Liquidità had already amended article 4-bis, paragraph 3, of Law Decree no. 105 of 21 September 2019, providing, pending the issuance of a Decree by the President of the Council of Ministers ("DPCM") aimed at identifying more specifically the assets and relationships of strategic importance for the national interest, a transitional extension of the scope of application of the Golden Power discipline to the following matters indicated in article 4 (1) (c), (d) and (e) of Regulation (EU) 2019/452:
c) supply of critical inputs, including energy or raw materials, as well as food security;
d) access to sensitive information, including personal data, or the ability to control such information; or
e) the freedom and pluralism of the media,
specifying that the financial sector should include the credit and insurance sectors.
At the time of conversion into law, it was further specified that the health sector also includes the sectors related to the production, import and wholesale distribution of medical, surgical and personal protection devices (art. 15 of the Decreto Liquidità) and that, in the food and steel sectors, the application of the Golden Power regulation is aimed at pursuing the further aim of protecting the maintenance of employment levels and productivity in the national territory (art. 17 of the Decreto Liquidità).
It must be kept in mind that the emergency regulation provides, until 31 December 2020, the obligation to notify the Government, inter alia, of any resolution, act or transaction, purchase of shares by an enterprise, including those belonging to the European Union, which holds one or more assets in the areas identified by the new Law Decree no. 21 of 15 March, 2012, which causes a change of ownership, control or availability of such assets or a change in their use. The special powers which can be exercised in such cases by the Government include, in certain circumstances, the veto right and the possibility to impose specific conditions for the transactions in question.
The special rules will be further supplemented by the forthcoming DPCM, which is currently under examination by the competent parliamentary committees. This governmental decree will identify the assets and relationships of national strategic importance subject to the Golden Power in addition to those originally provided in the areas of defense, security, energy, transportation, telecommunications.
The DPCM will therefore strengthen and clarify the scope of Golden Power's applicability by identifying, for each of the sectors indicated in Article 4(1) of Regulation (EU) 2019/452, the critical infrastructures, critical technologies, critical inputs, critical information and reports of strategic importance, defined, according to the current DPCM draft under examination by the Parliament, such as the technologies, goods, reports, information and economic activities essential for maintaining the vital functions of the society, health, safety and economic and social well-being of the population, as well as, in some cases, also for the technological progress.
Originally published 26/10/2020 .
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