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New forms for notification of transactions under the Italian foreign direct investment (FDI) regime

  • Italy
  • Global
  • Competition, EU and Trade - Foreign investment regimes

14-12-2020

Following the COVID-19 outbreak, many European countries widened the objective scope of application of their foreign investment protection regime with the view to protect their strategic assets from hostile takeovers by foreign companies in a period of great economic crisis.

This approach has also been adopted in Italy. As a matter of fact, back on 8 April 2020, the Italian FDI regime embodied in Law Decree 21/2012 has been widely extended in its scope with, in particular, Art. 15 of Law Decree no. 23/2020.

Article 15 has indeed extended, among others, the notification obligations to the acquisitions by non-EU companies, of undertakings with assets and relationships in the ‘sectors’ listed in Art. 4 para 1 of Reg. (EU) 452/2019. Such provision will be applicable until the approval of an implementing decree that will identify the strategic assets in the sectors listed in the abovementioned Art. 4. Nevertheless, for the time being, the new draft government regulation has not yet been adopted, thus the FDI requirements are still liable to cover a wide range of transactions.

Pending the approval of such new government regulation, in early December, the Italian Presidency of the Council of Ministers has published new notification forms for the undertakings aiming at serving before the Italian Presidency transactions falling within the objective scope of the Italian FDI regime.

Such new forms require a much greater degree of detail of the information to be reported in the notice. This is clearly a consequence of the large number of notifications received during 2020, due to the broader scope of the foreign investment protection regime, and the greater degree of experience acquired by the Italian Presidency in recent months.

Among other things, the following are now required:

  1. a description of the European countries in which both the Buyer and the Target carry out their economic activity (also through their branches). In this case, the name of the branches and their description must be provided;
  2. the indication of the net annual turnover of the Buyer and of the Target company (and of the group to which they belong);
  3. a description of the Buyer and Target's chain of control;
  4. indication of any EU financial sanctions imposed upon the Buyer;
  5. in case of acquisition project, the purchase contracts (for instance the Sale and Purchase agreement) shall be filed;
  6. the indication of the need or not, for the purpose of closing the transaction, to obtain further authorizations according to national or European or other EU member states legislation;
  7. lastly, and in particular, to draft the form both in Italian and English.

On this basis FDI filings become even more similar to merger filings forms.

On the one hand, the greater degree of detail needed will therefore require further legal assistance with the undertakings involved in an acquisition of an Italian company owning assets that fall within the scope of the Italian FDI regime. On the other hand, such new level of detail, if respected by the notifying party, should mitigate the risks of incompleteness of the form for future notifications.

On this point, it should be noted that the incompleteness of the notification is not without consequences for the notifying parties: indeed, if the Presidency requests further information to the notifying company, the 45 days stand-still period applicable to such filings, can in principle be interrupted until the company concerned replies to the Presidency's request for information. This clearly entails a certain slowdown in the clearance of the transaction and therefore in the closing of the contract.

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