{"id":118625,"date":"2022-04-19T09:43:20","date_gmt":"2022-04-19T09:43:20","guid":{"rendered":"https:\/\/www.lcalex.it\/golden-power-e-sindacato-giurisdizionale\/"},"modified":"2022-04-20T09:57:43","modified_gmt":"2022-04-20T09:57:43","slug":"golden-power-e-sindacato-giurisdizionale","status":"publish","type":"post","link":"https:\/\/www.lcalex.it\/en\/golden-power-e-sindacato-giurisdizionale\/","title":{"rendered":"Golden Power and judicial review"},"content":{"rendered":"

On April 13, 2022, the Regional Administrative Court (\u201cTAR<\/strong>\u201d) of Lazio (Rome) published decision no. 4488, regarding the exercise by the Italian Government of the special governmental power to veto, under certain circumstances, a corporate acquisition transaction (so-called Golden Power<\/strong>).<\/p>\n

This is a rare event: notwithstanding that, in Italy, the Government’s exercise of the Golden Power is unquestionably subject to judicial review (unlike in other countries), to date there have been only two reasoned judgments of the TAR on that subject (in addition to the Telecom-Vivendi case, which, however, had a unique procedural and factual development).<\/p>\n

The case\u00a0<\/strong><\/p>\n

The transaction at issue concerned the acquisition by Syngenta Crop Protection AG of the entire share capital and voting rights \u2013 and, consequently, of the exclusive control \u2013 of Verisem B.V., a group operating in the vegetable seeds industry<\/strong>, and its Italian subsidiaries: Suba Seeds Company S.p.A., Royal Seeds S.r.l., HortuS\u00ec S.r.l., Verisem Distribution S.r.l. and Franchi Sementi S.p.A.<\/p>\n

Suba Seeds Company S.p.A., in particular, operates in the field of mechanics and innovative technologies for agriculture, with significant innovative capacity in the field of mechanisation of agricultural crops<\/strong>. The actual owner of Syngenta \u2013 a circumstance that was not disputed and which is set out in the decision of the TAR \u2013 is the Chinese Government<\/strong>.<\/p>\n

In October 2021, the Italian Government exercised its veto on the sale of the Italian companies of the Verisem Group to Syngenta AG by applying the Golden Power rules (D.L. 21\/2012 e DPCM n. 179\/2020), which allow the government to exercise veto power in relation to transactions in the sectors of, among the others, food safety<\/strong>, processing of data <\/strong>(including personal data) and access to sensitive information<\/strong>, and critical technologies<\/strong> (such as artificial intelligence and robotics).<\/p>\n

The principles affirmed by the TAR<\/strong><\/p>\n

A first point of interest is that a third-party, B.F. S.p.A., participated in the TAR proceedings by way of intervention ad opponendum<\/em> (i.e. in support of the Government), claiming that, should the legitimacy of the contested measure be confirmed, it would have the right to acquire the Verisem Group. This circumstance was deemed sufficient by the TAR to consider the intervention admissible.<\/p>\n

That said, the principles expressed by the TAR can be summarised as follows:<\/p>\n