Amendments to the Golden Power Regulation: clarification on the extension of the Golden Power in the energy sector

With the Decrees of the President of the Council of Ministers (“DPCM”) no. 179 and 180 dated December 30, 2020 (effective from January 14, 2021), the Legislator has significantly innovated the Golden Power regulation set forth by Law Decree no. 21/2012 (the “Golden Power Regulation”).

In the context of the Covid-19 emergency, on April 8, 2020 the Italian Government has issued Law Decree no. 23/2020 (so called “Liquidity Decree”) which, among other things, has amended the Golden Power regulation (please refer to our previous newsletter on this topic: click here). Indeed, the Legislator has introduced some urgent provisions (effective until June 30, 2021), extending the perimeter of such regulation with reference to the “strategic assets” in all sectors referred to in Article 4 of EU Regulation no. 2019/452, where among the others,  "critical infrastructure, whether physical or virtual, including energy, [...]" are generically referred to.

The lack of a definition of "strategic assets and relationships", which the same Golden Power Regulation demanded to the adoption of subsequent DPCMs, led (some operators) to retain that the relevant regulations could/should be applicable to almost any extraordinary transaction in the energy sector, no matter the size or the value of the operation.

Although there were several arguments, based on the rationale of the Golden Power Regulation itself and on the Court of Justice case-laws, to consider that the Golden Power Regulation should be applicable only to transactions involving assets that are deemed as strategic from a national perspective (please see our Newsletter dated April 22, 2020), in the absence of regulatory clarifications from the Italian Government, some operators used to notify to the Government some transactions in the energy sector, regardless of the value and type of transaction, in order to avoid the risk of any penalties set forth under the Golden Power Regulation.

In this regard, it is worth noting that we have experienced that in two cases of notification regarding the purchase of renewable assets (i.e. pv plant in operation), the Government has stated that the Golden Power Regulation does not apply in such cases.

Also in consideration of the overwhelming number of notifications received in recent months by the Government due to the uncertainty of the scope of the regulation, with the DPCM no. 179/2020 and 180/2020, the Government has (finally) identified which are the strategic assets, clarifying the scope of application of the Golden Power regulation.

In particular, with regard to the energy sector, as per DPCM no. 179/2020, the Golden Power Regulation applies to transactions involving:

1. critical infrastructures where fuels, nuclear materials or radioactive waste are located, including technologies and infrastructures for the treatment, management and transportation of such materials;
2.  essentials buildings for the use of critical infrastructure sub (i);
3. coastal deposits of crude oil and petroleum products and LNG storage infrastructure;
4. critical technologies for managing wholesale markets for natural gas and electricity; and
5. economic activities of strategic importance carried out in the energy sector by companies with annual net turnover more than € 300 million and with more than 250 employees.

The abovementioned strategic assets have to be added to those indicated in DPCM no. 180/2020 – which were previously identified in DPCM no. 85/2014 - and in particular:

1.  the national gas transmission network, the related compression stations and dispatching centres, storage facilities;
2.  the infrastructures for the supply of electricity and gas from other states;
3.  the national electricity transmission grid; 
4. the management activities and properties connected with the networks and infrastructures referred to in points (i), (ii) and (iii) above.

The abovementioned DPCMs therefore definitively limit the scope of application of the Golden Power regulation to assets of strategic importance, as identified by the same Decrees.

DPCMs no. 179/2020 and 180/2020 also specify that, without prejudice to the obligation to proceed with notification in the case of transactions regarding strategic assets, the Golden Powers Regulation cannot, however, be exercised by the Government in case: 

1. the protection of safety and public order is in any case guaranteed by the existence of specific sector regulations connected with a specific concessionary relationship; or
2.  the intra-group transactions, when the relevant resolutions do not entail the transfer of the registered office to a non-EU country, a change in the corporate purpose, amendment of clauses in the articles of association or the establishment or transfer of real rights.

In light of the above, the DPCMs adopted by the Government confirm that the Golden Power Regulation shall apply only to the strategic assets as defined by the mentioned DPCMs, therefore limiting the obligation to notify only with regard to the transactions related to such strategic assets.