On March 22, 2022, the new regulation on Golden Power entered into force, introduced with the Law Decree containing urgent measures to counter the economic and humanitarian effects of the Ukraine crisis ("Energy Decree" or "Ukraine Decree") which amended Law no. 56/2012.
The new discipline aims to strengthen the powers of the Presidency of the Council of Ministers regarding the control of investments in strategic Italian sectors and to rationalize the notification procedure and the subsequent investigation.
In particular, the possibility of pre-notification is introduced to receive clarifications on the applicability of the legislation and the probability of authorization of the operation. The notification can be made jointly between the acquiring company and the target company. Failing this, the target company must be informed of the notification and may submit briefs and documents to the Presidency of the Council of Ministers within 15 days from the filing of the notification.
The Guardia di Finanza will be able to verify the cases of failure to notify and an evaluation and strategic analysis unit is set up at the Department for the administrative coordination of the Presidency of the Council of Ministers to collaborate in the daily management of notifications.
The penalties for failure to notify are also increased, including the nullity of contracts, a fine of up to 3% of the turnover of the obliged party and the restoration of the situation prior to the operation.
The new Golden Power discipline is also extended to the acquisition of Italian companies by Italian companies in the energy, transport, health, agri-food, credit and insurance sectors.
In the defense and security sector, in addition to the resolutions, relevant acts and transactions already provided for by the previous regulations, also those that have the effect of changes in the ownership, control or availability of strategic assets and the assignment of assets to guarantee are subject to notification obligation.
The 5G and cloud technologies sector is expressly qualified as "activity of strategic importance for the national defense and security system" and market operators must notify the Government in advance of an annual plan relating to the purchase of goods and services related to the 5G and cloud technology and other activities indicated in the subsequent Prime Ministerial Decree and to produce half-yearly reports following the application of the Golden Power by the Government. The Presidency of the Council of Ministers will be able to investigate and monitor these sector operations with the help of the National Assessment and Certification Center (CVCN).
Avv. Lifang Dong and Avv. Chiara Civitelli
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