On 24 September 2022, Prime Ministerial Decree No. 133 of 1 August 2022 (the “Decree 133/2022”) will come into force providing, among other things, for the repeal of previous Prime Ministerial Decree of 6 August 2014 concerning the regulation of preliminary coordination activities of the Presidency of the Italian Council of Ministers for the exercise of golden powers.
Among the most notable amendments introduced by Decree 133/2022 is the pre-filing procedure, whose implementation in Law Decree No. 21 of 15 March 2012 (as subsequently amended and, together with the relevant implementing decrees, the “Golden Power Legislation”) had been anticipated to remedy the remarkable increase in the number of filings submitted to the Italian Government in recent years (from only 8 in 2014 to 496 in 2021).
The pre-filing will allow to initiate preliminary discussions with the Italian Government requesting an initial assessment as to the applicability of the Golden Power Legislation to a certain transaction.
Highlights of the pre-filing procedure include the following:
- The concerned investor/company may anticipate the Government’s assessment by submitting a pre-filing consisting of a preliminary notice of the prospective transaction(s) relevant for purposes of the Golden Power Legislation, providing documents and information equivalent to those needed for an ordinary filing “insofar as available”. Therefore, pre-filing will be possible even if such information is still incomplete: however, Decree 133/2022 does not specify the minimum level of information sufficient for such purposes.
- Within 30 days of the preliminary notice, the Government may reply to the relevant company stating whether the transaction falls within the scope of the Golden Power Legislation: lack of the Government’s reply within the aforesaid timeframe forces the company to submit an ordinary filing. Therefore, should the Government fail to reply within the relevant deadline, the company will nevertheless be obliged to make an ordinary filing.
- Having said that, the Government’s reply (if any) to the company within the afore-mentioned 30-day period from the pre-filing may be:
- the transaction does not fall within the scope of the Golden Power Legislation and, therefore, no ordinary filing is required; or
- the transaction falls within the scope of the Golden Power Legislation and, therefore, an ordinary filing is required; or
- the transaction falls within the scope of the Golden Power Legislation, but the Government deems there are obvious grounds to exclude the exercise of its golden powers.
- Consequently, considering the uncertainties on the timing and outcome of the pre-filing procedure, companies will be called upon to make a tangible assessment of the advantages of a pre-filing, also in light of the fact that the timeframe required for such procedure may be added to that of an ordinary notification procedure.
- It should also be noted that even when the Government timely communicates to the company that (i) the transaction does not fall within the scope of the Golden Power Legislation or (ii) the transaction falls within the scope of the Golden Power Legislation but there are obvious grounds to exclude the exercise of its golden powers, each of the administrations comprising the “Coordination Group” – established within the Italian Presidency of the Council of Ministers and composed, among others, of the heads of the Ministries’ offices contributing to the performance of the preliminary activities to the exercise of golden powers – may nevertheless request that such company submits an ordinary filing within three days of the Coordination Group’s meeting. The same request may come from each of the parties to the proceedings within three days of the Government’s reply.
- In addition to the above, the Government may provide for recommendations to the relevant company even in the context of a pre-filing procedure where it deems that (i) the transaction falls within the scope of the Golden Power Legislation or (ii) the transaction falls within the scope of the Golden Power Legislation but there are obvious grounds to exclude the exercise of its golden powers.
Further clarifications and, more generally, further indications from practice are awaited to assess the actual advantages of the pre-filing procedure, whose impact appears today rather uncertain. Moreover, updated forms aimed at facilitating collection of relevant information and documentation for notifying companies will hopefully be published by the Government soon.
Read the alert by Andrea Carreri and International Trade & National Security Team.
