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Valentina Bonfitto, associate at Gianni, Origoni, Grippo, Cappelli & Partners outlines the impact of Italy's new rules on the so-called ‘Golden Share’ (Law Decree 21/2012). Following
formal criticisms from the European Union (EU), Italy has
recently enacted new rules on the so-called ‘Golden Share’ (Law Decree
21/2012).
Previous
regulations prompted by Law Decree 332/1994 provided that, with respect to certain
companies directly or indirectly controlled by the State and operating in the
defence, transport, telecommunications, energy resources and other public
service sectors, the State was to hold some special powers. These included the
power to oppose the acquisition by investors of significant shareholdings
representing at least 5% of voting rights, to oppose the conclusion of
contracts or agreements between shareholders representing at least 5% of voting
rights and to veto resolutions for the dissolution of the company, transfer of
the undertaking, merger, demerger, transfer abroad of the company headquarters,
alteration of the company’s objects, amendment of the articles of association
removing or modifying the special powers.
The
criteria for the exercise of the special powers were provided for by a Prime
Minister’s Decree of 2004. According to the EU Court (Case C 326/07, judgment of March 26 2009), the cases in which the
golden share could have been exercised under the criteria set forth by the 2004
were potentially numerous, undetermined and undeterminable. In other words, the
latitude enjoyed by the Italian authorities gave those powers a discretionary
nature, with the result of discouraging investors.
Therefore,
the new rules aim at providing potential investors with a higher degree of
certainty by removing those elements of administrative discretion that the
former regulation entailed. The conditions for the exercise of the ‘golden
share’ are now objective, proportional, non-discriminatory and clearly defined ex ante. In addition, such conditions
are strictly limited to exceptional circumstances which are likely to cause
serious and irreparable harms to the fundamental interests of the State (public
security and defence, security and continuity of supply of public services,
guarantee of financial and
managerial soundness of strategic assets, and democratic principles of the
State).
We briefly
describe the main features of the new regime below.
Law Decree
21/2012 has a wider scope of application than the former rules, as it applies
to any company owning or controlling ‘strategic assets’ in the fields of (i)
defence and national security; (ii) energy, transports and telecommunications,
irrespective of whether the State is a shareholder. Indeed, some commentators
observed that the new regime should be referred to as ‘Golden Powers’, rather
than Golden Share.
Basically,
it is provided that - any act, resolution or transaction adopted or entered
into by the companies concerned, which is liable of affecting the operation of
the strategic companies, or the ownership and availability of the strategic
assets, has to be notified to the Italian Government. A stand-still period of
15 days is provided.
Provided
that conditions for the exercise of the golden powers are met, the Government
could either: (i) make the transaction subject to specific conditions; (ii)
veto the transaction (last-resort measure).
However,
with respect to companies operating in the energy, transports and
telecommunications sectors, the veto can be only opposed to extra-EU investors.
Further, a
reciprocity condition is provided. Without prejudice to the Government’s
faculty of opposing a transaction when the applicable conditions are met, it is
provided that extra-EU investors willing to purchase a stake in a strategic
company are only permitted to do so if their native country allow Italian
citizens and companies to be stakeholders of those country’s companies at the
same conditions. However the reciprocity condition applies without prejudice to
the international treaties entered into by Italy or the EU.
The new
regime does not repeal the existing rules on the possibility, for State-owned
companies operating in the strategic sectors, of introducing in their by-laws a
limitation, to the purchase of a stake by any individual or company, to 5% of
their shareholding (provided for by Law Decree 474/1994).
Conclusively,
if correctly and proportionally applied, the new regime seems likely to turn
into an effective instrument for providing legal certainty and thus for
attracting investments in Italy.
| Valentina Bonfitto |
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Valentina Bonfitto's pratice focuses on competition law and regulatory issues of network industries, especially in the field of energy and electronic communications.
Valentina holds a Decree in Law from La Sapienza University of Rome (2004) and an Master in Antitrust and Market Regulation from the Centre for Economic and International Studies - CEIS - Tor Vergata University of Rome - Faculty of Economics (2006).
Before joining the firm she gained experience in an important law firm in Rome specializing in EU law and competition law. She also joined a national research project at AGCOM, the Telecom Regulator, on high-speed broadband networks.
She has been admitted to the Bar in Italy (2006/2007).
She speaks Italian, English and Spanish.
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