Decrees No. 179 and 180 of 18 and 23 December 2020: the new "Golden Power" Regulation

Introduction

The Decrees of the President of Council of Ministers no. 179 of 18 December 2020 ("DPCM Asset of National Interest") and no. 180 of 23 December 2020 ("DPCM Energy, Transport and Communication Networks" and, jointly with the DPCM Asset of National Interest, the "DPCMs") have identified all the assets and interests subject to the so-called "Golden Power" regime, including also certain assets of national interest previously not included (such as the highways) and resolving (by providing a more restrictive description of such assets) part of the numerous applicative uncertainties arisen on the market from the interpretation of the regulations previously enacted in the context of the outbreak of Covid-19 in Italy.

More in particular, Law Decree 8 April 2020 no. 23 (so called "Liquidità Decree") had introduced further measures aimed at strengthening the powers of the Italian Government to veto or impose specific prescriptions upon transactions concerning companies or assets operating within specific strategic sectors (so-called "Golden Power"), originally introduced by Law no. 56 of 11 May 2012 (converting Law Decree no. 21/2012). In particular the Liquidità Decree:

• broadened the strategic sectors subject to the Golden Power to the sectors indicated in the European Regulation no. 452/2019, demanding to a further implementing decree the exact identification of the interests and assets falling within such strategic sectors; and
• extended - on a temporary basis until 31 December 2020 - the application of the Golden Power regulation also to: (i) transactions carried out by EU resident persons and concerning the acquisition of control of "assets with strategic relevance"; (ii) transactions having a value greater than Euro 1 million carried out by non-EU resident persons concerning the acquisition of shareholdings greater than 10% in companies owning "assets with strategic relevance"; (iii) transactions carried out by non-EU resident persons entailing the acquisition of shareholdings in companies owning "assets with strategic relevance" exceeding the thresholds of 15%, 20%, 25% and 50%.

The Liquidità Decree has been converted - with limited amendments - by Law 19 May 2020 no. 34, extending the Golden Power regulation also to the healthcare sector, production, import and wholesale distribution of medical, surgical and individual protection devices (in addition to the other assets of strategic relevance identified by the European Regulation no. 452/2019).

Furthermore - in light of the enduring emergency due to the Covid-19 outbreak - the above mentioned term of 31 December 2020 has been extended until 30 June 2021 (by Law 18 December 2020 no. 176, converting the Law Decree 28 October 2020 no. 137 – so called "Decreto Ristori").

As mentioned above, further to the Liquidità Decree, the Italian Government recently enacted the DPCMs aimed at better identifying the assets in the various sectors falling under the Golden Power regulation:

• DPCM Asset of National Interest identifying the "assets of National interest" within the sectors indicated in the European Regulation no. 452/2019 (i.e., financial, credit and insurance sectors, critical infrastructures and technologies including energy, transport, water and healthcare, food safety, access to sensitive information, including personal data, artificial intelligence, robotics, semiconductors, cybersecurity, as well as nanotechnology and biotechnology, media freedom and pluralism) and, with particular reference to the energy sector, including the deposits for fuels, nuclear materials or radioactive waste and the technologies and infrastructures involved in the treatment, management and transportation of such items;
• DPCM Energy, Transport and Communication Networksidentifying the strategic assets within the energy, transport and communication networks sectors relevant for the “Golden Power”, updating and repealing the previous implementing regulation provided by the Presidential Decree no. 85/2014 and, with particular reference to the transport sector, including the road and highway network of national interest, national spaceports and the interports of national relevance.

Both DPCMs have been published in the Official Gazette on 30 December 2020 and will enter into force on 14 January 2021.

Assets of national interest identified by the DCPM Asset of National Interests

The DPCM Asset of National Interest firstly provides certain definitions to identify the "assets of National interests" within the different sectors included in the European Regulation no. 452/2019. In particular:

• "critical infrastructure" means the critical infrastructure for maintaining the vital functions of society, health, safety and the economic and social well-being of the Italian population ("Critical Infrastructure");
• "critical technology" means the critical technologies for maintaining the vital functions of society, health, safety, economic and social well-being of the Italian population, as well as for technological progress ("Critical Technology");
• "critical production factors" means the assets and interests critical for maintaining the vital functions of society, health, safety and the economic and social well-being of the Italian population ("Critical Production Factors");
• "critical information" means the information critical for maintaining the vital functions of society, health, safety and the economic and social well-being of the Italian population ("Critical Data");
• "strategic economic activities" means the economic activities critical for maintaining the vital functions of society, health, safety, economic and social well-being of the Italian population, as well as technological progress ("Strategic Economic Activities").

Energy sector

The following assets have been included by DPCM Assets of National Interests in the list provided by the DPCM Energy, Transport and Communication Networks, illustrated under the following paragraph ‎3.1, (i.e., the relevant assets in the energy sectors are included in part in the first DPCM and in part in the second):

• Critical Infrastructures used as deposits for fuels, nuclear materials or radioactive waste and the technologies and infrastructures involved in the treatment, management and transportation of such items;
• real estate properties critical for the use of the Critical Infrastructures;
• coastal deposits of crude oil and petroleum products with a capacity equal to or greater than 100 thousand cubic meters used for the national market, LNG storage infrastructures with a capacity equal to or greater than 10 thousand cubic meters, abroad supply oil pipelines and supply oil pipelines for intercontinental airports;
• Critical Technologies (including platforms) for managing wholesale markets for natural gas and electricity;
• Strategic Economic Activities carried out within the energy sector by companies with a net annual turnover > Euro 300 million and an average annual number of employees > 250.

Before the enactment of the DPCM Asset of National Interest and in light of mere reference made by the Liquidità Decree to the European Regulation no. 452/2019 for the identification of the relevant assets, many doubts have arisen among commentators and operators on the application of the notification obligation to the energy sector as the entire energy chain could have, in principle, be considered as included in the scope of application of the Golden Powers regulation (including the production of energy, regardless of the capacity of the relevant plant and potentially involving also small plants powered by renewable sources).

As also indicated by the first commentators, the enactment of the DPCMs seems to clarify the Golden Power regulation's applicability in the energy sector as the DPCMs provide a list of specific areas of application, confirming the rationale underlying the Golden Powers regulation, aimed at preserving (only) infrastructures, technologies, production factors, information and economic activities essential for the maintenance of the vital functions of society, health, security, economic and social well-being of the population. Therefore, standard investments in the renewable sources would not fall within the updated Golden Power rules unless such investments involve Critical Infrastructures, Critical Technologies or Strategic Economic Activities falling within the materiality thresholds indicated under this paragraph.

Water sector

The assets and interests within the water sector relevant for Golden Power regulations are:

• Critical Infrastructures (physical or virtual) and Critical Technologies (including those intended to improve the efficiency and sustainability of water supply networks, water supply and treatment and purification processes) guaranteeing the collection, purification, adduction, distribution and wholesale supply of drinking water intended for human consumption and of water intended for irrigation, as well as sewer and wastewater purification;
• Strategic Economic Activities carried out within the water sector by companies with a net annual turnover > Euro 300 million and an average annual number of employees > 250.

Healthcare sector

The assets and interests (including the relevant intellectual property rights) within the healthcare sector relevant for Golden Power regulations are:

• Critical (digital) Technologies functional to the provision of healthcare services (also remotely);
• Critical Technologies aimed at analysing data and using biological knowledge for healthcare, diagnostics, prognostics, therapy and related follow-up(s);
• Critical (bioengineering) Technologies and Critical (nano)Technologies used in the pharmaceutical and medical devices sector, in diagnostics, prognostics and therapy, as well as in the chemical and agri-business sectors;
• Strategic Economic Activities carried out within the healthcare sector by means of management or use of the Critical Technologies and Critical Infrastructure referred above (including those relating to the supply of medicines, medical devices and equipment and the related R&D activities) or carried out by companies with a net annual turnover > Euro 300 million and an average annual number of employees > 250.

Data sector

The assets and interest within the treatment, storage, access and control of sensitive data and information sector relevant for Golden Power regulations are:

• Critical Data relating to Critical Infrastructures or to European critical infrastructures in the energy and transport sector;
• Critical data relating to the census and monitoring of public works' safety;
• Critical Data collected though satellite navigation systems for the tracing of fields, seas and basins and for the creation of production and prescription maps;
• Critical Data collected through sensors for the detection of soil and water status as well as Critical Data relating to biochemical composition of agricultural soil;
• Critical Data collected through self-guiding systems for precise processing, with the use of IT instruments for the management of spatial and temporal variables of farming, breeding farming, fishing and aquaculture;
• Critical Data collected through management and control of air, sea, rail, rapid mass and road transport systems, which guarantee security and safety, as well as those concerning the management and monitoring of passenger and assets circulation;
• Critical Data relating to the management of wholesale markets and the natural gas, electricity and hydrocarbons markets;
• Critical Data collected and managed through the information systems of the judicial offices.

The DPCM Asset of National Interest further specifies that the data to be considered as Critical Data in relation to the items above are the following data attributable to natural or legal persons, to the extent their treatment, storage, access or control concerns a quantity of such data to be considered essential for the maintenance of vital functions of society, health, safety and the economic and social well-being of the Italian population as well as media's freedom and pluralism (it being understood that are considered Critical Data the data concerning at least 300 thousand natural or legal persons):

• sensible data as defined under article 9 of EU Regulation no. 679/2016 (i.e. personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person's sex life or sexual orientation);
• civil judicial data and data relating to criminal convictions and offences;
• data collected through the following infrastructures and technologies and the related integration and interconnection systems between them:
  
  • technologies relating to electoral, financial, insurance, credit and high-tech sectors;
  • technologies allowing geolocation and reconstruction of movements;
  • technologies relating to digital systems allowing remote reading and remote management of electricity, gas and water meters (i.e. smart metering);
  • technologies relating to digital systems for the improvement of comfort, safety, and driving experience and technologies relating to autonomous driving systems (i.e. smart car);
  • technologies relating to constructions and buildings equipped with advanced functions and interconnected systems for monitoring and managing systems and consumption (i.e. smart building);
  • digital technologies for quality of infrastructures and public services optimization (i.e. smart city);
  • digital technologies for comfort and security in the home improvement (i.e. smart home), including digital technologies for surveillance and security systems;
  • technologies relating to systems allowing remote measurement and transcription of information (i.e. telemetry);
  • technologies relating to servers, databases and software configurable and available from remote (i.e. cloud computing);
  • digital technologies relating to the provision of healthcare services, disease prevention and health promotion, even remotely, capable of acquiring, processing, recording, transmitting and decoding of clinical information and data;
  • technologies for guaranteeing safety and security of systems aimed at controlling, managing and assisting people and assets movement.

Electoral sector

The Electoral Information System platform ("Piattaforma del Sistema Informativo Elettoriale" - SIEL) at the Ministry of Domestic Affairs for the collection and diffusion of electoral data is the only asset within the electoral sector relevant for Golden Power regulations.

Financial, credit and insurance sectors

The assets and interests within the financial, credit and insurance sectors relevant for Golden Power regulations are:

• Critical Infrastructures (including platforms) for the multilateral trading of financial instruments or monetary deposits, for the provision of basic services of central securities depositories and central counterparty clearing services as well as for clearing or settlement of payments;
• the following Critical Technologies:
  
  • artificial intelligence and distributed registers (i.e. blockchain), functional to services and products innovation within the financial, credit, insurance and regulated markets sectors;
  • digital technologies relating to payment, electronic money and money transfer systems and services, liquidity management, lending, factoring, trading, investment management;
  • digital technologies applied in insurance (i.e. insurtech);
  • technologies for the development of software for the protection of personal data, the negotiation and exchange of data and products as well as document management in the context of the management of financial activities;
  • technologies "based on distributed registers" (i.e. blockchain);

• Strategic Economic Activities carried out within the financial, credit and insurance sectors by companies or intermediaries with a net annual turnover > Euro 300 million and an average annual number of employees > 250.

Please note that it is debated whether NPLs (non-performing loans) and UTP (unlikely to pay) should be included among the interests and assets subject to Golden Power. Certain scholars argue that Government's special powers should apply only to assets and activities vesting a "structural nature" (therefore not the granting of credits). Furthermore, NPLs and UTP have not been included among the assets indicated by the DPCM Asset of National Interest.

On the other hand, others argue that the interests and/or assets underlying the NPLs and/or UTP may be relevant for the Golden Power in case such assets fall within the strategic sectors and the enforcement of the rights pertaining to such transactions entail a change of control.

Artificial intelligence, robotics, semiconductors, cyber security, nano and bio technologies sectors

The assets and interests within the artificial intelligence, robotics, semiconductors, cyber security, nano and bio technologies sectors (including the relevant intellectual property rights) relevant for Golden Power regulations are:

• Critical Technologies used in industrial automation for the production of automatic machines, numerically controlled machine tools, factory cyber-physical systems;
• Critical Technologies for collaborative robotics, "Machine-To-Machine Communication" (M2M) technology, technologies related to computerized machine learning;
• Critical Technologies used for advanced manufacturing, including additive manufacturing, new materials and nanotechnologies as well as used for the nuclear sector and industrial engineering services and technologies that allow rapid prototyping;
• Critical Technologies for artificial intelligence, virtual and augmented reality, robotics, relating to semiconductors, microprocessors and computational systems, microelectronics, sensors and actuators;
• Critical Technologies deriving from the studies and applications of quantum mechanics, relating to processes with a high computational impact, to communications and sensors;
• Critical Technologies for the analysis of large volumes of data in order to extract information (i.e. big data analytics);
• Critical Technologies for the development of critical or sensitive software designed to simulate conversations with human beings (i.e. chatbots);
• Critical Technologies based on distributed registers (i.e. blockchain);
• Critical Technologies used in the biological sector, including the technologies aimed at deciphering and using biological knowledge for the production of goods and services in the industrial and environmental sector;
• Critical Technologies for non-military remote or autonomous piloting;
• Critical Technologies (including satellite navigation systems) for tracing fields, seas and basins, producing production and prescription maps, detecting soil and water status, self-guidance for precise processing, breeding farming, fishing and aquaculture;
• Critical Technologies for territorial surveillance, mapping and assessment of hydrogeological risk;
• Critical Technologies guaranteeing the safety and security of systems aimed at controlling, managing and assisting the movement of people and goods on land, air and waterways;
• Critical Technologies to enable geolocation, tracking and reconstruction of the movement of people and goods, to dynamically quantify population density and optimize strategies aimed at monitoring and containing infectious epidemics.

Non-military aerospace sector

The assets and interests within the non-military aerospace sector relevant for Golden Power regulations are the Critical Technologies and Critical Infrastructures used for the design, development, implementation and supply of space and aerospace products and services.

Agribusiness sector

The assets and interests within the agribusiness and related supply sector relevant for Golden Power regulations are:

• supply of raw materials referred to in the Communication from the EU Commission to the EU Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions concerning the review of the list of critical raw materials for the EU and the implementation of the "raw materials" initiative of 13 September 2017 COM (2017) 490;
• supply of Critical Production Factors used in the steel industry;
• economic activities of strategic relevance and the supply of Critical Production Factors in the agribusiness chain;
• the National Agricultural Information System (Sistema Informativo Agricolo Nazionale) and the agribusiness control system (also for food safety purposes).

Dual-use items 

The assets and interests within the dual-use items indicated under article 3, paragraph 2, of the EU Regulation n. 428/2009 of 5 May 2009 relevant for Golden Power regulations are the Strategic Economic Activities concerning such dual-use items carried out by companies with a net annual turnover > Euro 300 million.

Media's freedom and pluralism sector

The assets and interests within the media's freedom and pluralism sector relevant for Golden Power regulations are the Strategic Economic Activities carried out by audio-visual or radiophonic media services providers, interactive services or conditional access services providers, broadcasting providers, press agencies, publishers of daily newspapers, periodicals or magazines (even digital) and others media service providers subject to registration under the Register of Communications Operators referred to in Article 1, paragraph 6, letter a), no. 5, of the Law 31 July 1997, no. 249.

Strategic assets identified by the DPCM Energy, Transport and Communications Networks

The most important additions to the applicable regime relate to: (i) the fundamental real estate properties needed - by virtue of a functionality link - for the use the strategic networks and infrastructures within the energy sector and (ii) the inclusion of the national spaceports, the interports of national relevance and the road and highway network of national interest within the transport sector.

For sake of completeness, please find below all the updated interests and assets identified by the DPCM Energy, Transport and Communication.

Energy sector

The assets within the energy sector relevant for Golden Power regulations are the energy networks of national interest and the related agreements, including: 

• national natural gas transmission network and related compression stations and dispatching centres as well as gas storage facilities;
• infrastructures for the supply of electricity and gas from other countries, including onshore and offshore LNG regasification plants onshore and offshore;
• national electricity transmission grid and related control and dispatching facilities; 
• management activities and fundamental real estate facilities connected with to the usage of the networks and infrastructures referred above.

Transport sector

The assets within the transport sector relevant for Golden Power regulations are the major networks and infrastructures of national interest (also intended to guarantee the main trans-European links) and related agreements, including: 

• ports of national interest; 
• airports of national interest;
• national spaceports; 
• national railway network relevant for trans-European networks;
• interports of national interest;
• road and highway networks of national interest.

With reference to the road and highway networks, it is not yet fully clear which roads and highways will be considered of "national interest" and, as such, subject to the "Golden Power" rules provided by the DPCM Energy, Transport and Communication Networks. Please note that Legislative Decree of 29 October 1999, no. 461 included a list of roads and highways described as of "national interest" (pursuant to Legislative Decree 31 March 1998, no. 112). Such list was provided for the sole purpose of defining the maintenance functions to remain under the responsibility of the State's central administrations and the DPCM Energy, Transport and Communication Networks does not make any express reference to it. In addition, further highways - not included in such list - have been defined as of "national interest" by a specific CIPE (Interministerial Committee for Economic Planning) resolution. As a consequence, it cannot be said whether the definition and list provided by Legislative Decree of 29 October 1999, no. 461 should play any role for the purposes of the Golden Power regulation in relation to road and highway network and different criteria might be by applied by the Golden Power supervising Authority taken into account the ultimate goal to "guarantee the main trans-European links". Therefore, in light of the above considerations and according to a prudent approach, the analysis of the Golden Power applicability should be performed on a case-by-case basis (taking into account the relevant circumstances and the underlying rationale and goals of the regulation).

Communication sector

The assets within the communication sector relevant for Golden Power regulations are the dedicated networks and the network of public access to end users in connection with the metropolitan networks, service routers and long-distance networks as well as the facilities used for the provision of access to end users and broadband and ultra-wideband services and related agreements.

Such assets include also the elements dedicated (even not for exclusive use) for connectivity, security, control and management relating to access networks of telecommunications in fixed location.

Limitations provided by the DPCMs 

The DPCMs further specify that, save for the obligation to notify the relevant transaction falling under the Golden Power procedure, the Government's special powers can be exercised only to the extent that the "National Interest" are not adequately guaranteed by the existence of specific sector regulations, including those of a conventional nature connected to a specific concession relationship.

Furthermore, save for the obligation to notify the relevant transaction falling under the Golden Power procedure, the Government's special powers does not apply to transactions carried out within the same group (to the extent such transactions do not entail the transfer of the registered office in a country outside the European Union, the amendment of the corporate purpose and/or the provisions of limitations to voting rights as well as the granting of rights over the strategic assets).

The above limitations shall not apply in case of information or elements suggesting the threat of serious damage to "National Interest".