Decree-Law no. 21 of 15 March 2012, converted by Law no. 56 of 11 May 2012, gives the Government special powers over the ownership of companies operating in sectors deemed strategic. Introduced to replace the old golden share, which the Court of Justice of the EU had found unlawful, the regime has steadily widened and is now one of the main sources of regulatory risk (and therefore timing risk) in M&A involving Italian assets.
Scope
The rules cover three areas:
- defence and national security (art. 1), where the powers apply to any acquirer, Italian ones included;
- 5G and cloud networks and technologies (art. 1-bis), with regard to supply contracts for goods and services;
- energy, transport, communications and the sectors listed in art. 4 of EU Regulation 2019/452 (art. 2): critical infrastructure, critical and dual-use technologies, security of supply of inputs, access to sensitive data, media freedom and pluralism, and sectors such as finance, healthcare and agri-food.
In the art. 2 sectors the notification duty generally concerns acquisitions of control by non-EU parties, but in some areas (energy, transport, communications and certain sectors under Regulation 2019/452) it has been extended to EU parties, Italian ones included. For non-EU investors, notification may also be triggered when certain shareholding thresholds are crossed, regardless of control.
Notification, timing and pre-notification
Notification to the Presidency of the Council of Ministers must be made within ten days of signing the agreement or adopting the relevant resolution and, in any event, before they are implemented. The Government then has 45 days to exercise its powers; the period is suspended when information is requested from the company or from third parties. Until the decision, the effects of the transaction are suspended.
Since 2022 a pre-notification procedure has been available, allowing a transaction to be submitted informally before signing to learn whether a formal notification is needed or whether objections are unlikely. For significant transactions, pre-notification is often the most effective way to bring certainty to the deal timetable.
Possible outcomes and sanctions
The Government may decline to exercise its powers, clear the transaction subject to conditions (commitments on governance, continuity of supply, data localisation, maintaining a presence in Italy) or, in the most serious cases, veto it or oppose the acquisition. Failing to notify carries administrative fines proportionate to the value of the transaction and may render the acts void; the Government may also open proceedings on its own initiative.
Practical points for investors
- Check whether the regime applies at term-sheet stage, based on the actual business of the target and its subsidiaries, not just its activity code.
- Include a Golden Power condition precedent in the contract, with cooperation duties for the parties and an allocation of the risk of onerous conditions.
- Coordinate the notification with other clearances (Italian and EU merger control, EU Regulation 2022/2560 on foreign subsidies, sector authorisations).
- Consider pre-notification when it is unclear whether the transaction falls within scope.
Handling Golden Power early turns it from a risk of the deal being blocked into a simple element of deal planning.
This note is for information only and reflects the law at the date of publication; it is not legal advice.