Golden Power: preparing the Corporate Transaction and analysing the screening procedure. From preliminary assessments to the Government’s decision.

1. The transaction the parties can negotiate and the transaction they will be able to implement

When a company decides to acquire another business, the first document on the table will usually contain a price, an equity percentage and an industrial plan. In strategic sectors, an essential part of the deal is still missing: the extent of the power the buyer will actually be able to exercise after paying that price.

Will it be able to integrate information systems? Transfer technology? Centralise treasury operations? Appoint the directors it had intended? Arrange support for Italian infrastructure from another country? These decisions may underpin the economic rationale for the investment. They are also decisions that Italy’s Golden Power regime may affect where the statutory conditions are met.

The issue arises here, while the transaction can still be changed. Approaching the Presidency of the Council of Ministers with a contract already built around synergies incompatible with protecting the asset means leaving the public review to address a difficulty that should have been considered when the transaction was being designed. The risk enters the price long before it enters the administrative file.

Consider an entirely hypothetical example: an international group interested in an Italian company that develops software for operating energy networks. The attraction of the acquisition lies in integrating products, technical support and information. A condition separating certain access rights or requiring organisational independence may leave the acquisition possible while changing its commercial appeal. Counsel must be able to explain that possibility when the board decides to invest, when the parties negotiate the terms and when lenders assess the financing.

Seen in this light, the Golden Power procedure provides a particularly revealing perspective on the law governing the economy. The contract confers rights; the administration assesses their effects on protected interests; EU law sets limits on restrictions on investment. The outcome emerges from the interaction of these levels, each with its own legal requirements and responsibilities.

My argument is that effective public protection and effective advice to the investor depend, to a significant extent, on the same capacity: describing precisely how the transaction changes the availability of a strategic function. A generic notification makes a selective decision harder. Powers exercised through generic formulations make an informed investment harder. The procedure is where both forms of generality must be overcome.

The following account takes Articles 1 and 2 of Decree-Law No 21 of 2012 as its principal reference. Special regimes, including the annual plan for 5G and the coordination rules introduced for the financial sector, are considered where they alter the sequence. The operational examples are proposed methods, distinct from mandatory requirements. That distinction allows the article to retain both practical value and scholarly rigour.

2. From the golden share to regulation of the transaction: the history behind the procedure

The State can sell its ownership of a company without ceasing to be responsible for the collective interests associated with its activities. The privatisations of the 1990s confronted Italian law with this problem: transferring shares was possible; transferring full responsibility for the continuity of an essential function to the new shareholder was a different matter.

The 1994 legislation sought an answer in special powers incorporated into the articles of association of certain companies. The expression golden share encapsulates that period, although it does not necessarily identify an actual share carrying privileged rights. The connection with privatisation remained central. Protection followed companies identified in part by their previous public ownership.

EU law put that approach to the test. The Court of Justice’s judgments of 4 June 2002 reached different outcomes: they found against the Portuguese and French regimes, while accepting the Belgian regime concerning certain energy infrastructure. The limits on intervention, the scope for reviewing its exercise and the procedural safeguards helped make the difference. In the judgment against Italy of 26 March 2009, by contrast, the criteria for exercising the powers were found insufficiently precise.

That history matters directly to anyone structuring a transaction today. Predictable public intervention is one of the conditions for investment. A defined restriction can be assessed, discussed and, if commercially sustainable, incorporated into the project. An indeterminate restriction creates a cost that is harder to measure and allocate.

The 2012 Decree-Law shifts the focus to the strategic relevance of activities and assets. Garofoli has described how the special powers became detached from their original connection with privatisation. The consequence is substantial: a business that has always been privately owned may also become the object of public protection. Its ownership history gives way to the function it performs.

This produces what may be described as a law of the national interest, provided the expression denotes a responsibility bounded by law. The strategic function must be identified; the risk must be established; the means of protection must be capable of justification. Spagnuolo Vigorita’s discussion of a new paradigm of public intervention helps explain this transformation, in which private initiative and public responsibility meet through a particularly far-reaching administrative power.

The history of the regime therefore leads to the procedure. The further protection moves away from a list of formerly State-owned companies, the more it requires an investigation capable of understanding how businesses actually operate. The transaction file must reveal the difference between an activity that matters to its shareholders and an activity whose availability determines the protection of an interest recognised by law.

3. The first stage: identify the applicable regime before discussing the outcome

The first task is to identify the provision that may bring the transaction within the regime. The distinction between defence and national security, governed by Article 1, and the strategic assets covered by Article 2 affects the classification of the parties, the thresholds, the relevant acts and the effects of the waiting period. The rules on 5G-related purchases in Article 1-bis have a further, distinct structure.

This assessment requires the Decree-Law to be read alongside the instruments identifying the relevant activities and assets. Depending on the sector, these include Decrees of the President of the Council of Ministers (DPCMs) Nos 108 of 2014, 179 of 2020 and 180 of 2020. DPCM No 133 of 2022 provides for coordination, pre-notification and certain simplified procedures; the procedural regulations of 2014 must still be read together with subsequent legislative amendments.

The business sector named in a company presentation is a starting point. Legal classification must reach the actual activities. A company may use artificial intelligence for an ancillary function or hold technology meeting the statutory characteristics. An operator may process ordinary data or control information whose availability is strategically significant. The same commercial label can describe radically different situations.

It is also necessary to distinguish falling within the scope of the regime from the existence of a threat capable of justifying intervention. Magliari has critically highlighted the risk that a widening scope may be accompanied by a weakening of the functional basis for the power. For a company, that distinction has an immediate consequence: notification may be required for a transaction even though there is considered to be no reason to exercise the special powers.

The preliminary conclusion should therefore expressly identify the asset, the provision that makes it relevant, the act that may trigger the regime and the person required to notify. The assessment of the risk of conditions or opposition is a separate matter. Presenting these two judgments as a single answer would prevent corporate decision-makers from understanding which issue they actually need to manage.

4. Understanding what is being acquired: due diligence on the strategic asset

Golden Power due diligence requires discussions with the business that often go beyond ordinary corporate documentation. Counsel must understand the functions performed by the asset, who depends on it, what alternatives exist and how long they would take to become operational. An inaccurate technical description can produce a legal error at the outset of the entire procedure.

In the hypothetical example of software for energy networks, knowing who owns the source code is necessary. It is also necessary to know who can update it, what remote access is permitted, how credentials are allocated, which licences survive a change of control and what support remains indispensable. Formal ownership of intellectual property and the practical ability to maintain the service may sit in different places.

Farrell and Newman’s analysis of the capacity of global networks to concentrate powers of surveillance and disruption helps explain these dependencies. Its value is analytical: it helps identify possible vulnerabilities. The legal basis for intervention remains the one provided by law. The theory of interdependence cannot become an independent ground for bringing a transaction within the screening regime.

In practice, it is useful to establish how the asset operates before and after the transaction. Changes in ownership, availability, access, organisation and decision-making capacity should be apparent. This comparison makes it possible to assess which risks arise from the acquisition and which already exist. The administration can then assess the actual change, while the investor can avoid assuming obligations based on an inaccurate account of its future influence.

This assessment also concerns the data room. Early disclosure of data, technology and sensitive documentation must comply with the applicable rules and any restrictions already imposed on the business. A confidentiality agreement governs a contractual relationship; signing it does not, by itself, make every form of access lawful. The composition of working groups, levels of access and availability of selectively disclosed versions of documents are organisational choices to be made in light of the particular risk.

The useful outcome of due diligence is a verifiable factual basis. It will inform the decision whether to notify, the negotiation of the contract and responses to the administration. If these three activities use different descriptions of the same business, the weakness of the dossier is already visible before filing.

5. Understanding the buyer: shareholdings, control and effective influence

The company signing the agreement may be only the final link in a larger structure. The assessment of the investor must follow the ownership chain and explain the rights that allow decisions to be influenced. For a fund, the manager’s functions, governance arrangements, any special investor rights and the financing structure also matter.

Article 2(5-bis) contains a detailed definition of a person outside the European Union. Subject to specified conditions, it includes persons established in the EU or European Economic Area but controlled by persons outside it, and also addresses circumvention. The place of establishment of the acquisition vehicle therefore does not exhaust the inquiry. The domestic definition must be distinguished from the concepts used in EU law, whose scope is examined below.

The origin of the capital enters the assessment through specific facts. Relationships with authorities of third countries, financing capable of influencing decisions, relevant past conduct and control structures are distinct from a general geopolitical perception. Meunier has shown how responses to foreign investment may depend both on perceived origin and on the investor’s institutional characteristics. In the procedure, that distinction must be translated into verifiable documents and powers.

For acquisitions governed by Article 2(5), control is relevant even where the buyer is from the EU, including Italy, in communications, energy, transport, health, agri-food and finance, including banking and insurance. For foreign persons outside the EU, the provision also covers holdings of at least 10 per cent of voting rights or capital where the overall investment value reaches EUR 1 million, and subsequent crossings of the 15, 20, 25 and 50 per cent thresholds. Acquisitions of control have their own trigger and do not benefit from a general exemption below that value.

Defence is subject to the different system in Article 1(5), with an initial threshold of more than 3 per cent and subsequent thresholds, under the wording applicable to listed companies and the corresponding cross-reference for unlisted companies. Automatically transferring the percentages in Article 2 to Article 1 produces incorrect results. Subsequent acquisitions and shareholder agreements must also be assessed under the relevant provision.

The practical implication is that a minority interest must be considered together with its attached rights. Percentage ownership, vetoes, appointment rights, information rights and contractual influence describe different matters. The preliminary opinion must explain which are relevant to the particular case, avoiding both mechanical reliance on percentages and an undefined concept of control.

6. Identifying the relevant act: Golden Power beyond share purchases

A transaction can change the availability of an asset without transferring control of the company holding it. A merger, demerger, business transfer, change of use or security interest may require a separate assessment. In Articles 1 and 2, rules on acquisitions of equity interests coexist with rules on corporate resolutions, acts and transactions.

Article 2(2) concerns assets in the sectors identified by paragraph 1; paragraph 2-bis introduces distinctions for additional assets, including by reference to the recipient and the sector. These differences affect the notification route. The initial file should therefore describe the entire contractual sequence: acquisition, financing, reorganisation and transfers planned after closing.

Security interests provide a particularly instructive example. In the Cedacri judgment of 5 December 2025, the Council of State attached significance to the shareholder’s retention of economic and governance rights when assessing the particular financing transaction secured by a pledge. The precedent requires examination of the rights actually conferred. It does not allow every creation or enforcement of security to be excluded from the regime as a matter of principle.

The assessment also extends to the formation of a new business. Article 2(7-bis) covers the establishment of an undertaking carrying on activities or holding assets identified under paragraphs 1 or 1-ter, where one or more shareholders outside the EU, as statutorily defined, hold at least 10 per cent of voting rights or capital. A joint venture may therefore raise a Golden Power issue at incorporation. This provision has its own requirements, which must be examined without automatically importing the value threshold applicable to certain minority acquisitions.

The same care is required for intragroup reorganisations. An unchanged ultimate controller may support the absence of a material change in risk; exclusions from the exercise of the powers must nevertheless be distinguished from notification obligations that remain applicable. Article 2(1-ter) also contains a specific provision for certain transactions involving intellectual property assets in technology sectors where persons outside the EU are involved, including within the same group.

Professional care requires the entire sequence to be intelligible, without treating the first administrative decision as unlimited cover for future acts. Approval of the structure described in the notification must be understood by reference to that structure. If a subsequent technology transfer changes an essential premise, the question whether the regime applies arises again.

7. Deciding whether to notify: the company’s preliminary assessment

A decision not to notify may be correct. Its reasoning must be capable of being reconstructed. The conclusion should be recorded in a document identifying the facts examined, the provisions applied and the elements supporting exclusion. If, for example, a particular functionality is decisive for the technological classification, the finding should rest on a technical description verified by the business.

That document does not create an exemption binding on the administration. It enables corporate bodies to make an informed decision, identifies who supplied the information and establishes which changes require reassessment. It becomes more useful if it also identifies unresolved issues and the reasons why they were not considered decisive.

A precautionary filing may be appropriate where the uncertainty concerns relevant matters and cannot reasonably be resolved. It nevertheless has costs in time, documentation and contractual commitments. A practice of notifying every transaction would transfer the entire preliminary classification exercise to the administration, increasing the burden on the system and making its focus on sensitive transactions less selective.

The residual nature of intervention requires particular care here. Article 14 of DPCM No 179 of 2020 preserves notification obligations while linking the exercise of the powers to the insufficiency of the specific applicable regulation. The presence of a sectoral regulator may therefore support an argument against exercising the powers, without automatically dispensing with the required notification.

In my view, professional judgment is also measured by the ability to give reasons for exclusion. The administration should receive the cases assigned to it by law; the company should be able to recognise those left to its own autonomy. Pre-notification sits between these needs. It becomes valuable when used to resolve a precisely described doubt at a stage when the investment can still usefully be shaped.

8. Drafting the contract while risk can still be negotiated

Public law begins to have effects during negotiations. A condition precedent linked to the Golden Power outcome allocates risk only if it defines which outcome will permit the agreement to be performed. A generic reference to “obtaining authorisation” may leave the most sensitive situation unresolved: an acquisition permitted subject to conditions that alter the industrial plan.

The parties must establish which conditions are acceptable, who may propose commitments and whose consent is needed to undertake them. A limit expressed only as a monetary amount may be insufficient. Giving up access to technology or a governance power may affect the transaction’s value without immediately translating into a measurable accounting cost.

In our example, separating certain IT access rights could be compatible with the investment; a restriction preventing integration of the acquired product could undermine its economic rationale. The parties should discuss that distinction before the administration proposes a measure. The contract should usefully establish who bears the cost of adjustments, how alternatives will be assessed and who has authority to accept a solution affecting the target company.

The final date by which the transaction must be capable of completion, usually called the long-stop date, must also reflect a considered timetable. Pre-notification, information gathering, possible supplementary submissions, EU cooperation and other required authorisations involve different timeframes. A contractual deadline set simply by adding forty-five days to signing may prove incompatible with an entirely regular procedure.

Cooperation between the parties also requires concrete arrangements. Responsibility for filing, the documents each party will provide, internal response deadlines, access to incoming communications and the handling of confidential information must be identified. In a competitive or unsolicited acquisition, the buyer’s and target company’s interests may diverge; the contract, where there is one, does not eliminate their respective positions in the procedure.

Clauses protecting the business’s value during the waiting period require a further balance. A consultation right over ordinary business and a power capable of bringing forward the buyer’s influence have different effects. Their wording must be coordinated with Golden Power restrictions, any applicable merger control regime and other relevant constraints. The administrative waiting period is not a period without rules.

9. Pre-notification: obtaining an answer while the transaction can still change

Article 7 of DPCM No 133 of 2022 allows the undertaking concerned to submit information on proposed incorporations, acquisitions, resolutions, acts or transactions to the Department for Administrative Coordination. The documents and information required for a formal notification must be supplied insofar as they are available. The provision expressly preserves the obligation to comply with mandatory notification deadlines.

Pre-notification therefore requires a sufficiently defined project. If the acquisition structure, control chain or rights being transferred remain unclear, the response may have limited value. The ability to submit information that is still provisional must be accompanied by an explanation of what is settled and what may change.

Within thirty days of the submission, the Department communicates the outcome of the Coordination Group’s deliberations. The transaction may be considered outside the regime, with no consequent obligation to make a formal notification; it may be considered potentially within scope, requiring a filing; or it may fall within scope but manifestly lack the grounds for exercising the special powers. Recommendations may accompany either of the latter two outcomes.

The rules also preserve the possibility of requesting a formal notification even following findings that the transaction falls outside the regime or manifestly lacks grounds for intervention. The three-day window available to the administrations and the parties, with their respective starting points, must be taken into account. Above all, if the thirty days expire without a decision, notification under Articles 1 and 2 is required. Silence at the pre-notification stage does not clear the transaction.

Whether to use pre-notification should be decided by comparing its expected value with the time available. It can be valuable where the doubt concerns the classification of a technology or the actual effect of particular rights. It is less useful where the obligation is clear and the project is ready for full review, unless there is a specific reason for early engagement. Garofoli places pre-notification within the design for simplifying and strengthening the organisation of the system: its usefulness depends on bringing forward an informed assessment.

A favourable outcome should ultimately be retained together with the facts submitted. If the project changes significantly, the original response cannot be read as an assurance covering any future transaction. At this stage too, certainty depends on correspondence between what has been described and what will be implemented.

10. Who must notify and when: responsibility does not pass to the adviser

The notification obligation must be allocated before the relevant time limit begins to run. For equity acquisitions under Articles 1(5) and 2(5), the obligation rests with the buyer, with joint notification with the target company where possible. For resolutions, acts and transactions covered by the corresponding provisions, the obligation rests with the undertaking concerned under the applicable rule. Instructing a professional organises compliance; it does not change the person legally responsible.

A joint filing may reduce duplication and make the dossier more consistent. Where there is no joint filing, the notifying company must simultaneously provide the company whose interests are being acquired with information on the essential elements of the transaction and the notification, and provide evidence that the information was received. This enables the target company to participate in the review. For acquisitions governed by those provisions, it may submit written observations and documents within fifteen days of notification.

The timing of compliance requires the provisions to be read separately. Article 1(4) concerns information on a resolution, act or transaction to be adopted. Article 2(2) and (2-bis) requires notification within ten days and, in any event, before implementation. The provisions governing acquisitions of equity interests also prescribe ten days and a regime suspending rights. These formulations do not establish a uniform rule allowing parties always to wait until ten days after closing.

For transactions subject to contractual conditions, notification should be organised around a sufficiently defined structure before transfer and integration proceed. The relationship between signing, effectiveness, transfer and implementation must be established from the actual contractual terms. The word signing does not, by itself, identify the same legal event in every contract; nor does the word closing resolve every question concerning the availability of the asset.

The event treated as legally relevant, the provision governing it and the operational deadline should therefore be recorded in writing. A timely filing must be prepared before that event. Waiting for a short statutory period to start before gathering foreign documentation turns a foreseeable issue into an avoidable urgency.

11. Preparing the dossier: making the transaction understandable

Notification requires a complete and consistent account of the transaction. The main submission should explain the company’s business, the relevant asset, the parties involved, the structure before and after the transaction, the investment value, the financing and the organisational consequences. The supporting documents must substantiate that account and allow it to be verified.

Depending on the transaction and the applicable forms, the dossier includes corporate and ownership documentation, transaction documents, agreements, financial data, descriptions of activities and information on the buyer. The source of funds and the industrial plan matter in relation to the statutory assessment criteria. For EU cooperation, Article 9 of Regulation 2019/452 identifies information on, among other matters, ownership, approximate value, products and services, countries of operation, financing and the date of the investment.

Completeness is not a question of document count. Even a complex contract attached in full may fail to make the right affecting the strategic asset visible. It is useful to explain where that right is located, how it operates and what effect it has. In technology transactions, a clear report verified by the technical managers may make the assessment much more reliable than a collection of commercial presentations.

The most consequential statements must be substantiated. If it is argued that the buyer will not have access to certain information, the technical and organisational restrictions preventing that access must be described. If a supply is said to be replaceable, the timeframe and conditions for replacement must be explained. If reliance is placed on the Italian company’s autonomy, its articles of association, delegated powers, service agreements and group systems must be read together.

For international groups, it is useful to prepare a single, coherent legal account in Italian and coordinate documentation in other languages with the needs of the review. Any need for translations or particular certifications should be checked against the relevant documents and requirements, without assuming that every foreign attachment requires the same formality. Signing authority and any power of attorney must be checked before submission.

The dossier should also address problematic matters the administration can reasonably be expected to identify. A material dependency disclosed together with measures capable of limiting it can be assessed. A dependency omitted and discovered during the review creates both a substantive problem and a problem with the reliability of the entire account.

12. Submission to the Presidency: filing, confidentiality and evidence of compliance

Article 5 of DPCM No 133 of 2022 requires submission exclusively by electronic means, using certified email (posta elettronica certificata, or PEC), to the Department for Administrative Coordination of the Presidency of the Council of Ministers at the specifically published address. The same provision governs communications by the target company and subsequent supplementary submissions. The official channel and forms must be checked in the version available when filing.

That check serves a precise purpose. An address taken from an old file or a form retained for years is not a sufficient basis for a new filing. The institutional recipient, proper signature, referenced attachments and their readability must be checked. Receipts and the exact version of the submitted dossier should be retained together, including where document sizes require several transmissions in accordance with the office’s instructions.

Proof of delivery records submission; it does not automatically establish that the notification is substantively complete. The distinction matters when calculating time limits. The working team should therefore monitor incoming communications immediately, rather than treating filing as the start of a period of passive waiting.

Confidentiality requires equally practical work. Commercially sensitive information must be identified, and the reason for protecting it must be understandable. Commercial confidentiality, personal information, any classified material and restrictions on disclosure between the parties must be distinguished. Confidentiality of the dossier does not exclude the institutional exchange of information provided for by national and EU rules.

For listed companies, the handling of the procedure must also be coordinated with separate market disclosure obligations. The Decree-Law specifies that notification does not, in itself, trigger the public disclosure obligation under Article 114 of the Consolidated Law on Finance (TUF). This does not exhaust the assessment of obligations applicable to inside information or other relevant events. Public disclosure and notification to the Presidency must be managed as connected legal matters, each with its own statutory basis.

13. Inside the Presidency: who conducts the review and how the decision is formed

Submission to the Presidency initiates a procedure involving several administrations. The Department for Administrative Coordination circulates the notification and convenes the Coordination Group to identify the ministry responsible for the review and the proposed decision. The communication to the parties identifies the competent ministry or informs them that the transaction falls outside the regime.

The responsible ministry conducts the assessment in coordination with the other administrations. The Coordination Group brings the different areas of expertise together; the National Cybersecurity Agency participates within its remit. This structure explains why the transaction must be described in a way that is legally precise and also intelligible to different technical and institutional interlocutors.

The decision to exercise the powers is adopted by decree of the President of the Council of Ministers, following a corresponding resolution of the Council of Ministers, under the applicable provisions. The review must identify the risk and the reasons for the proposed measure. The high-level nature of the assessment does not remove the need for a connection between established facts, the protected interest and the intervention actually ordered.

A decision not to exercise the powers may follow the simplified procedure in Article 6 of DPCM No 133 of 2022. In the absence of timely requests for referral to the Council of Ministers, the Group decides on the proposal and the Department communicates the outcome to the parties. The parties may request referral within five days of notification or of the communication informing them of their participation in the procedure. A decision not to exercise the powers may also be accompanied by recommendations.

The simplification concerns how the decision is formed; it does not give the company a general right to an early conclusion within a shorter period. Counsel must read communications for what they actually establish. Identification of the ministry, a request for information and communication of the outcome belong to different stages, with different effects on the timetable and the ability to implement the transaction.

14. The procedural timetable: forty-five days are not enough to fix the closing date

The ordinary period for exercising the powers under Articles 1 and 2 is forty-five days, according to the relevant provision. Using it in the contractual timetable nevertheless requires identification of the starting point, verification that the notification is complete and a record of applicable suspensions. The date of the first submission may not be the date on which the period validly begins to run.

Where a notification is incomplete, the Decree-Law links the starting point to receipt of the additional information. DPCM No 133 of 2022 addresses incompleteness or irregularity through a communication from the office and the submission of a new, complete notification. The distinction from a request for further information is substantive: the former affects the commencement or fresh commencement of the entire period; the latter suspends a period already running in the cases provided for.

Requests for information from the parties suspend the period once, until replies are received, with those replies due within ten days. For requests to third parties, a suspension is likewise available once, with replies due within twenty days. Requests after the first in each category do not produce a further suspension. The timetable must record the legal effect of each communication, avoiding the assumption that every exchange of documents has the same effect.

There is also a calculation issue that a practical article must make visible. Article 6(7) of Presidential Decrees (DPRs) Nos 35 and 86 of 2014 excludes Saturdays, Sundays and national holidays from the calculation of the periods to which it refers. The Golden Power Observatory’s 2025 policy paper nevertheless reports a practice of counting calendar days and calls for legislative clarification. This is a material divergence between the regulatory text and the practice reported by practitioners, which cannot be resolved by removing either piece of information from the analysis.

For practical management, compliance should be completed by the more cautious deadline, and the procedural timetable clarified promptly with the office. For closing and any reliance on the lapse of time without exercise of the powers, a documented legal assessment of the starting point and applicable calculation rule is required. Administrative clarification of scheduling is useful; resolving the legal issue requires the sources to be read together. The contractual timetable should accommodate the remaining uncertainty.

EU cooperation may also produce further suspensions under Article 2-ter of the Decree-Law. The actual duration is therefore not a fixed sum applicable to every transaction. It results from a sequence of events that must be tracked: complete filing, requests, replies, activation of cooperation and receipt of the resulting observations or opinions.

The distinction also carries a critical point. The investor has an interest in a swift procedure; certainty about how time is measured is a more basic requirement. A system demanding timely compliance must make its own timetable equally clear.

15. The investigation and the right to be heard: addressing the risk under examination

A request for information helps show where the administration’s attention is focused. It may concern missing data, the chain of control, the availability of technology or the feasibility of a commitment. The reply must answer the question and connect it to the overall account of the transaction.

DPCM No 133 of 2022 provides for requests to be transmitted by the Department, including through an invitation to a hearing. Information is supplied through the prescribed channel or submitted at the hearing if requested. Participation should therefore be organised so that those who understand the technical activity and those who assess its legal effects work from the same account.

A hearing can be particularly useful where an apparently simple vulnerability depends on a complex architecture. The technical manager can explain how the system works; counsel must explain the implications for the legal grounds for intervention and which measures are actually feasible. A meeting not followed by sufficiently precise documentation risks leaving an incomplete explanation in the file.

The target company retains its own position. It may clarify facts known to the buyer only through due diligence, challenge an account or explain the effects of conditions on business continuity. Its participation is particularly important where the required commitments must be implemented by its own corporate bodies and with its own resources. Agreement on the acquisition does not necessarily align every interest.

Participation safeguards must be read in light of the special regime and the applicable general rules. It would be imprudent to build the strategy on an expectation of always receiving, before the decision, a document equivalent to a definitive statement of objections. Submissions on disputed facts and available alternatives should be made while they can still contribute to the review. Any challenge to restrictions on the right to be heard requires a specific assessment of the procedure and the confidentiality requirements.

Counsel must also preserve the distinction between cooperation and acquiescence. Providing information and proposing solutions can accompany a reasoned challenge to the legal basis or proportionality of a measure. The position taken in defence of the investor becomes stronger when it identifies the missing element, the available alternative and the document demonstrating its effectiveness.

16. When the file becomes European

For investments covered by Regulation 2019/452, the national procedure forms part of a cooperation mechanism. The screening Member State transmits information to the Commission and the other Member States, which may issue comments or opinions within their respective competences. The company’s filing with the Presidency and the authority’s EU-level notification are separate steps. The final screening decision remains with the competent Member State.

Under Article 6 of the Regulation, an intention to intervene is communicated within fifteen calendar days of receipt of the information; comments and opinions ordinarily follow within thirty-five calendar days. Requests for additional information trigger the rule allowing twenty days from receipt of that information. In the circumstances specified in the same article, the Commission has up to a further five days after the deadline to issue an opinion following Member States’ comments. These periods must not be confused with those governing cooperation concerning investments not undergoing screening, under Article 7.

The connection with the Italian procedure is governed by Article 2-ter of the Decree-Law and Article 8 of DPCM No 133 of 2022. Notice of an intention to issue comments or an opinion produces the suspension provided for under national law; a suspension may also follow an Italian request for such contributions. The Department informs the parties of suspensions and handles requests for additional information. Initial transmission at EU level does not, by itself, amount to a fixed extension of the Italian period.

For an international business, this means that consistency of the dossier must extend across jurisdictions. Products, control, financing and the industrial plan cannot be described differently in parallel filings without an identifiable reason. Multiple investments or local acquisitions require coordination between advisers while preserving the specific features of national rules.

Schill has also examined the strengthening of EU screening in its relationship with openness to investment and the Union’s external economic policy. The procedure makes that tension concrete: information exchange can improve the assessment of cross-border risks, while the multiple levels involved require safeguards of proportionality and predictability. Cooperation should make the examination better informed and more amenable to scrutiny.

As at the date of this article, it is also necessary to distinguish the framework currently in operation from the reform already adopted. Regulation 2026/1386 has entered into force, but its general application begins on 17 January 2028, with certain preparatory provisions applying earlier and transitional rules in place. Regulation 2019/452 therefore continues to govern the mechanism described here. For transactions with a long time horizon, the analysis must be updated to reflect the investment’s actual timing.

17. EU law also reaches the substance of the decision

The European dimension goes beyond information exchange. An investment may be protected by freedom of establishment or the free movement of capital; restrictions must have a justification compatible with the Treaties. National responsibility for security, recognised by Article 4(2) TEU, must be exercised within that system of competences and safeguards.

The Xella judgment of 13 July 2023 requires particular attention to the facts. An EU company does not lose the protection of freedom of establishment solely because of its shareholders’ origin. In the dispute concerning construction materials, the Court examined the nature of the supply and the substance of the threat, recalling the need for a genuine and sufficiently serious risk to a fundamental interest. The mere economic importance of a supply does not resolve the question of justification.

The decision also concerns the scope of Regulation 2019/452, which the Court did not consider generally extended to investments by EU companies solely because they had shareholders from third countries, subject to the issue of artificial arrangements intended to circumvent screening. That delimitation must be distinguished from national legislation and the 2026 EU reform, which also broadens the framework in relation to certain European structures controlled by third-country investors. Conflating these levels or applying the new regime prematurely distorts the analysis of the individual transaction.

The dossier therefore requires a specific legal argument. The relevant freedom, the buyer’s position, the alleged threat and the less restrictive alternatives must be identified. An EU law argument gains strength when connected to the facts established in the review. An abstract assertion about the free movement of capital offers less protection than documentary evidence that a particular condition goes beyond what is necessary to neutralise the identified risk.

The same precision must guide the defence of the national interest. Merger control or prudential approval does not logically exclude every security risk. The Government must nevertheless explain which additional interest it is protecting and why the instrument used is compatible with the competences and limits of EU law. The distinct national function is on firmer ground when its object can be clearly identified.

18. The financial sector after the 2026 reform: a different sequence of procedures

The financial sector makes the need to coordinate different functions particularly clear. Prudential assessment of qualifying holdings, merger control and the protection of security have their own purposes. For credit institutions, the powers conferred on the ECB by Regulation 1024/2013 must be respected; for concentrations with an EU dimension, Article 21 of Regulation 139/2004 defines the scope for national measures protecting legitimate interests.

Law No 4 of 2026, converting Decree-Law No 175 of 2025 into law, amended Article 2 of Decree-Law No 21 of 2012. In the financial sector, including banking and insurance, where a transaction is also subject to authorisation by the European authorities competent for prudential and competition matters, the special powers cannot be exercised before the relevant procedures are completed. The rules also defer the start of the Golden Power notification periods until those procedures have concluded, in the circumstances covered by paragraphs 4 and 6-bis.

The practical consequence is significant. Planning cannot assume that every procedure will necessarily run in parallel towards interchangeable decisions. It is necessary to identify which European authorisations are actually required, what they cover and when each procedure can be regarded as concluded. The timing of the national filing and the transaction timetable depend on that information.

The amendment also has a substantive dimension. The reference to prudential regulation and merger control strengthens the question of residual intervention; national economic and financial security is linked to protecting essential interests not adequately safeguarded by the specific sectoral regulation. The Golden Power file should therefore explain what the competent authorities have already examined and what risk, if any, remains.

The European documents have a dual value: they evidence progress in the procedures and help define the national issue. They should not be treated as formulas that dispose of every security concern, nor may they be disregarded where they exclude or address the risk invoked. In my view, the strength of the national position here depends on making its distinct justification verifiable.

For counsel, this sequence requires close coordination between banking, insurance, competition and administrative law expertise. The industrial effects of a condition must remain connected to the risk justifying its adoption. A preference for a particular market structure, taken alone, does not replace the legal grounds for exercising a special power.

19. Designing the measures: the most sensitive part of the dialogue

Where the risk appears capable of mitigation, the question becomes which measure can neutralise it while keeping the investment feasible. Articles 1 and 2 give significance to requirements, conditions and commitments; a veto or opposition must be considered against the insufficiency of less restrictive solutions under the applicable provision. Discussion of the measures therefore forms part of the proportionality assessment.

A useful proposal should identify the risk addressed, the person bound by the obligation, the action required, the implementation deadline and how compliance can be verified. If the vulnerability concerns access to sensitive information, the measure must specify the information, the persons and the access in question. A general commitment to data protection may be difficult to verify while imposing obligations of uncertain scope on the business.

Garofoli has stressed the need for requirements that can actually be implemented and monitored. The criterion goes beyond administrative efficiency: a measure without identifiable parameters moves the dispute from the decision stage to the compliance stage. The company may find itself continually required to demonstrate compliance with a rule whose content is unclear.

Cost must therefore be assessed alongside precision. It is necessary to examine whether IT separation requires new infrastructure, whether a function must be maintained locally, whether governance autonomy is compatible with financing arrangements and whether a technological restriction changes licensing arrangements. Commitments must be approved by those capable of implementing them. The adviser cannot resolve through wording a contradiction that remains within the industrial organisation.

The Pirelli case shows how far measures can affect the allocation of decision-making power. According to the company’s statement of 11 April 2026 concerning the decree approved on 9 April and notified the following day, the new requirements address, among other matters, representation on corporate bodies, managerial autonomy, information flows and organisational relationships with the group. The reference is to the description published by the company, which is distinct from the full text of the decision.

For the investor, a formally unchanged shareholding may therefore confer a different set of powers in practice. That possibility must be reflected in the original price assessment and in the clauses defining acceptable measures. Engagement with the administration may improve the transaction structure; its economic effects must be understood by those who bear their cost.

20. Understanding the outcome: outside scope, no exercise of powers, recommendations, conditions and opposition

The final communication must be read for its legal character and its actual content. A finding that the transaction is outside scope means that the transaction described does not fall within the relevant regime. A decision not to exercise the powers rests on a different assessment: the transaction has been reviewed without the special powers being exercised. The difference matters if the facts change or a subsequent act requires assessment.

A decision not to exercise the powers may include recommendations. They require attention, but each statement cannot automatically be given the same legal treatment as conditions imposed through the exercise of the powers. Its wording, function and operative provisions must be examined. A concern expressed by the administration may be relevant to future organisation; the imposition of penalties, however, requires an identifiable legal basis.

Where conditions are imposed, the task is to translate the decree into obligations that can be implemented. The persons bound, the starting point, requirements preceding closing and those following it, periodic reporting and the monitoring authority must be identified. A provision addressed to the buyer and one addressed to the target company may require different corporate decisions and responsibilities.

Opposition to an acquisition and a veto on resolutions, acts or transactions have consequences that depend on the applicable provision and on whether implementation has already occurred. Where equity interests have been acquired and the regime in Article 1 or 2 applies, the rules may require their disposal within one year and provide for a court-ordered sale in the event of non-compliance. The contract must have considered these scenarios too, rather than providing only for the possibility that the deal simply does not complete.

Finally, expiry of the statutory period may permit the transaction or result in the powers not being exercised under the applicable provision. Reliance on that outcome requires a correct account of every event affecting the period and of what was actually notified. The effect of elapsed time following formal notification must be distinguished from silence at pre-notification, which follows the rule already examined.

21. Reaching closing: ensuring the implemented transaction is the one reviewed

A favourable conclusion to the procedure opens a final verification stage. The contract and structure to be implemented must be compared with what was presented to the Presidency. The scope of the target business, the identity of investors, governance rights, financing and organisational steps may have changed during the waiting period. Every material difference must be assessed before completion.

It is useful for the legal lead to bring together, in a closing memorandum, the outcome, the consistency of the facts, any immediate obligations and the status of other authorisations. This is a proposed organisational measure, distinct from a general statutory requirement. It enables corporate bodies and lenders to understand the basis for the decision to proceed.

The effects of the waiting period under the particular provision must also be respected. Under Article 2(4), the effectiveness of the resolution, act or transaction is suspended; for equity acquisitions, the Decree-Law specifically provides for the suspension of voting and other non-economic rights. These formulations must not be collapsed into a single regime. A contractual decision to defer closing may provide broader protection, but it must be recognised as a contractual choice.

The sequence on closing day requires care where the decree demands governance arrangements or technical protections that are immediately effective. An organisational safeguard may need to be established before transfer; an appointment may need to occur simultaneously; system access may depend on a verifiable separation being in place. A general promise to comply after closing does not replace compliance at the prescribed time.

Completion of the acquisition must also be coordinated with obligations to transmit documents and any communications required by the decision. The file that enabled the investment must be handed over to those responsible for its implementation. Discontinuity between the team that negotiated the deal and the team that will manage the business is one of the most readily preventable organisational risks.

22. After the decision: organising the relationship with the public authorities

A decree imposing conditions may establish a relationship that accompanies the company for years. The continuing dimension of the special powers, emphasised in Amorosino’s analysis, helps explain why the file cannot be closed when the equity interests are transferred. Protection of the public interest may take the form of obligations to be observed throughout the life of the investment.

The decision must be translated into organisational responsibilities. For each obligation, it is useful to identify a responsible function, the documents needed to evidence compliance and the time for verification. Those arrangements should be consistent with the competent administration and the monitoring procedures identified in the decree. The procedural regulations expressly envisage specifying requirements, monitoring criteria and the responsible administration.

A restriction on access to information, for example, requires rules that survive changes of personnel and suppliers. A governance obligation requires subsequent appointments to be examined in light of the decree. A requirement concerning continuity of a function must be considered when new outsourcing arrangements are negotiated. Compliance depends on the organisation’s ability to recognise decisions that affect the obligation.

Monitoring should produce usable records. A report merely asserting compliance provides weak evidence. It is more useful to connect obligations to facts, resolutions, configurations and checks while preserving information confidentiality. The aim is to enable both the company and the authority to understand whether the measure is working and what problems have emerged.

Unexpected developments must also be managed in an orderly way. If a measure becomes technically unworkable or circumstances change, the company must promptly examine the possibilities for engagement and, potentially, revision. A request for clarification or amendment does not, by itself, suspend the existing obligation. Until a new act or other effective determination is adopted, the decree remains binding according to its terms.

The duration and possible revision of conditions therefore deserve attention during the review itself. A measure justified by an identified risk should be capable of reassessment as that risk evolves. For the investor, understanding the terms of the administrative relationship over time is part of understanding the effective freedom to operate the acquired business.

23. Departures from the ordinary sequence: 5G, concessions and subsequent transactions

The 5G rules show why a single Golden Power timetable cannot describe every procedure. Article 1-bis concerns the annual plan for relevant purchases, to be notified before implementation, with updates possible every four months. Under that provision, the content covers the purchasing programme, suppliers, goods and services, ongoing contracts and network development.

The basic period is thirty days. Technical assessments may justify extensions of up to twenty days, extendable once more by twenty days in particularly complex cases; specific rules also apply to information requests, incompleteness and suspension. The plan is deemed approved when the prescribed periods expire. The assessment may also affect the period for which approval is granted and the replacement of goods or services. The regime therefore differs from that governing an acquisition of an equity interest under Articles 1 and 2.

For the businesses concerned, this requires procurement planning to be coordinated with public review. A change of supplier or architecture may affect the plan, earlier conditions and security checks. The procurement team must understand those constraints before undertaking contractual obligations.

For concessions, DPCM No 189 of 2022 establishes specific rules coordinating Golden Power notification with award procedures. The analysis must therefore integrate tender rules, the terms of the concession and the Golden Power procedure. The concession and the screening of the transaction retain their distinct functions; their coordination must be checked against the particular award sequence.

Similar attention is needed for events following an acquisition already reviewed. Further purchases of equity interests, changes to agreements, asset transfers or reorganisations may raise a fresh notification issue. The earlier decision is an essential element of the assessment, but its scope must be compared with the new act.

The practical principle is continuity of knowledge. Advisers assisting a group with a second transaction must be able to establish what was notified in the first, what measure was adopted and what factual premises supported it. Golden Power due diligence should therefore examine the asset’s administrative history alongside its current corporate position.

24. Failure to comply: action on the authority’s own initiative, invalidity and penalties

Failure to notify does not exhaust the public power merely because time has passed since the transaction. Where the notification obligation has been breached, Articles 1 and 2 provide for proceedings to begin even without a notification and link the period for exercising the powers to completion of the investigation establishing the breach. An investment implemented without notification must therefore also be assessed for its subsequent exposure.

The consequences must be distinguished. Depending on the case, they may include nullity of acts, suspension of rights, restoration obligations, disposal of equity interests and financial penalties. For failures to notify covered by Articles 1 and 2, the rules provide for penalties of up to twice the transaction value, subject to a minimum calculated at 1 per cent of the combined turnover of the undertakings involved. Breach of conditions may be governed by differently worded penalty provisions; the 5G regime has its own parameters. The applicable consequence must not be derived from a single formula applied indiscriminately to every breach.

Article 9 of DPCM No 133 of 2022 governs the penalty procedure. Following notification that proceedings have begun, the persons concerned have thirty days to submit written defences and documents, may ask to be heard and may inspect the file. A request for access suspends that period until disclosure. The procedure may end with a penalty or closure without further action.

This stage requires a separate defence. The alleged conduct, the applicable obligation, the responsible person, the documents available when the decision was made and the factors relevant to penalties must be established. A final decision not to exercise the powers over the transaction and a finding of an earlier failure to notify concern different issues; the former does not automatically extinguish the latter.

If the company discovers a possible failure to notify, the sequence must be reconstructed promptly and the proper way to engage with the administration assessed. A late notification cannot be presented as an automatic cure. Subsequent conduct may matter in the assessment of the case, but it does not replace examination of the breach and its effects.

25. Judicial protection: the litigation file begins during the administrative review

The strategic nature of the interests involved gives the administration a broad scope for assessment. The decision nevertheless remains subject to judicial review. Examination of the legal basis, the facts, the investigation, the statement of reasons and proportionality is particularly important precisely because the consequences for the business can be so substantial.

Disputes concerning the exercise of the special powers fall within the exclusive jurisdiction of the administrative courts and the functional competence of the Regional Administrative Court for Lazio, sitting in Rome (TAR Lazio). The expedited procedure under Article 119 of the Code of Administrative Procedure applies, including its rules halving procedural time limits and the exceptions for service of the originating application at first instance. An action for annulment remains ordinarily subject to a sixty-day time limit: its starting point and the further procedural requirements must be checked by reference to the decision and the way in which the applicant became aware of it.

Bringing proceedings does not automatically suspend the obligations. Interim relief requires an application and an assessment of the relevant conditions. A request to the administration for clarification or reconsideration must also be coordinated with the time limit for bringing a challenge: dialogue alone cannot be treated as neutralising that deadline.

TAR Lazio judgment No 13748 of 12 July 2025, concerning the UniCredit–Banco BPM transaction, demonstrates the importance of the reasons given for individual conditions. The judgment annulled specific parts of the decision, including the five-year duration provision and an extension concerning the project finance portfolio, on the distinct grounds examined by the court. Its significance cannot be recast as annulment of the entire decree or a definitive resolution of every EU law issue.

The precedent suggests a method of defence: examine each condition against the risk it claims to address, its scope and its duration. A complex decision may contain different assessments; the challenge must identify the defect in the part that actually adversely affects the applicant.

The quality of the judicial challenge also depends on the quality of the company’s preliminary investigation and its participation in the administrative procedure. If the company has documented a less restrictive solution, explained a technical dependency or demonstrated the cost of a measure, the court has material with which to assess any failure to consider those matters. Information that has never been organised rarely becomes persuasive evidence at the last moment.

Preparing the defence therefore begins when the dossier is built, even though the transaction may conclude without litigation. This is the professional value of traceability: making it possible to establish what the company stated, what the administration found and how both relate to the measure adopted.

26. The procedure as a measure of the quality of public power

Following Golden Power from the investment’s conception through to implementation reveals a profound change. The law of the national interest enters the drafting of the contract, the allocation of rights, the financing timetable and the organisation of the business. The public decision may make the transaction possible subject to conditions that define part of its economic substance.

That capacity must be accompanied by an equally demanding responsibility. The widening range of assets considered strategic makes it essential to distinguish the scope of public information-gathering from the grounds for restriction. A system may require information on many transactions while keeping its intervention selective. The frequency of notification does not, by itself, establish the frequency of threats.

In my view, the coherence of the regime depends on the ability to reconstruct the entire chain of assessment. The asset must be identified by its function; the change must be attributable to the transaction; the risk must relate to a protected interest; the measure must be explained by reference to that risk. EU law runs through each of these stages, from the allocation of competences to the proportionality of the outcome.

For the company, the same chain becomes a method of preparation. Due diligence establishes the facts, the contract allocates those risks that can be allocated between the parties, notification makes the project understandable, the review examines the concerns and monitoring sustains compliance with the imposed conditions over time. Each stage uses the work of the preceding one. Fragmented advice makes it harder to manage effects that run through the entire transaction.

Counsel’s value lies in the ability to connect these levels. The lawyer must understand the industrial plan without confusing it with the statutory classification, defend investment freedom through verifiable arguments and recognise the public interests that the law actually protects. Counsel must also know when a condition allows the transaction to proceed and when it changes its substance enough to require a fresh decision by the investor.

Legal certainty in this field means being able to know the facts on which decisions are made, the rules governing time and the obligations that will accompany the invested capital. The State protects more effectively when the reasons for its intervention are clear. A business invests more effectively when it addresses those reasons while it still has the freedom to shape the transaction.