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Golden Power: identification of the relevant assets and relationships in the sectors of national strategic relevance

07 January 2021
On 30 December 2020, the Decrees of the President of the Council of Ministers no. 179 of 18 December 2020 (the "DPCM 179") and no. 180 of 23 December 2020 (the "DPCM 180"), regarding the so-called "golden power" rules, were published in the official Journal of the Italian Republic ("Gazzetta Ufficiale della Repubblica Italiana").

On 30 December 2020, the Decrees of the President of the Council of Ministers no. 179 of 18 December 2020 (the "DPCM 179") and no. 180 of 23 December 2020 (the "DPCM 180"), regarding the so-called "golden power" rules, were published in the official Journal of the Italian Republic ("Gazzetta Ufficiale della Repubblica Italiana").

In particular, the DPCM 179 has identified, in order to verify the existence of a danger to security and public order, the relevant assets and relationships (1) in sectors of national strategic relevance listed in Article 4 of Regulation (EU) 2019/452. Specifically, the DPCM 179 has identified, among others, the following assets and relationships:

(i) in the energy sector:

a) critical infrastructures (2) where fuels, nuclear materials or radioactive waste are located or to be located, as well as the technologies and infrastructures for the processing, management and transport of such fuels, materials and waste;
b) key building for the use of such critical infrastructures;
c) coastal storage facilities for crude oil and petroleum products with a capacity of 100,000 (one hundred thousand) cubic metres or more used for the domestic market, LNG storage facilities with a capacity of 10,000 (ten thousand) cubic metres or more, pipelines for supply from abroad, including to other States, and pipelines for supply to intercontinental airports;
d) the critical technologies (3), including platforms, to manage wholesale markets for natural gas and electricity;
e) economic activities of strategic relevance in the energy sector carried out by undertakings with an annual net turnover of not less than EUR 300 (three hundred) million and an average annual number of employees of not less than 250 (two hundred and fifty);

(ii) in the financial sector, including credit and insurance sector, and in the financial market infrastructure sector:

a) critical infrastructures, including platforms, for multilateral trading of financial instruments or monetary deposits, for the provision of basic services of central securities depositories and clearing services as central counterparty and for the clearing or settlement of payments;
b) critical technologies such as artificial intelligence and distributed ledgers for service and product innovation in the financial, credit, insurance and regulated markets sectors; digital technologies relating to payment, e-money and money transfer systems and services, liquidity management, lending, factoring, trading and investment management; etc.;
c) economic activities of strategic relevance in the financial, credit and insurance sectors carried out by undertakings with an annual net turnover of not less than Eur 300 (three hundred) million and an average annual number of employees of not less than 250 (two hundred and fifty);

(iii) in the sectors of artificial intelligence, robotics, semiconductors, cybersecurity, nanotechnology and biotechnology:

a) critical technologies applied in industrial automation for the production of automatic machines, numerically controlled machine tools and factory cyber-physical systems;
b) critical technologies for collaborative robotics, machine to machine communication (M2M) technology, or machine learning technology; 
c) critical technologies, including systems, for the development of critical or sensitive software designed to simulate conversations with human beings ("Chatbot");
d) critical technologies based on distributed ledgers ("Blockchain"); etc.;

(iv) in the media sector:

a) economic activities having national relevance carried out by providers of audio-visual or radio media services, providers of associated interactive services or conditional access services, broadcasters, news agencies, publishers of newspapers and publishers of electronic publications.

On the other hand, DPCM 180 (4) has identified additional assets and relationship of strategic relevance in the energy (5), transport (6) and communications (7) sectors.

The DPCM 179 and the DPCM 180 have also specified that the exercise of the "golden power" by the Italian Government does not apply to the types of acts and transactions carried out within the same group concerning, mergers, de-mergers, incorporations, or transfers of shares, when the relevant resolutions of the shareholders' meeting or of the administrative bodies do not entail the transfer of business units or the transfer of a subsidiary company (or, in the cases provided for by DPCM 179, when they do not entail the transfer of the registered office to a country not belonging to the European Union), changes in the corporate purpose, dissolution of the company or amendment of clauses in the articles of association, etc. 

Also in such cases, the obligations of notification and communication to the Presidency of the Council of Ministers provided for by Article 2, paragraphs 2, 2-bis and 5, of Decree-Law no. 21 of 15 March 2012, converted, with amendments, by Law no. 56 of 11 May 2012, shall apply. 

Both DPCM 179 and DPCM 180 will enter into force on 14 January 2021.

References:

(1) DPCM 179 has issued in implementation of paragraph 1-ter of Article 2 of Law-Decree no. 21 of 15 March 2012, converted, with amendments, by Law no. 56 of 11 May 2012. The assets and relationships identified by DPCM 179 are additional to those identified in the decrees referred to in Article 1, paragraph 1, and Article 2, paragraph 1, of Law-Decree no. 21 of 15 March 2012, converted, with amendments, by Law no. 56 of 11 May 2012.
(2) This means the infrastructure essential for maintaining the vital functions of society, health, security and the economic and social well-being of the population.
(3) This means technologies essential for maintaining the vital functions of society, health, security, the economic and social well-being of the population, as well as technological progress.
(4) DPCM 180 has issued in implementation of paragraph 1 of Article 2 of Law-Decree no. 21 of 15 March 2012, converted, with amendments, by Law no. 56 of 11 May 2012.
(5) This sector includes, inter alia, (i) the national natural gas transmission network and its compressor stations and dispatching centres as well as gas storage facilities; (ii) infrastructures for the supply of electricity and gas from other States, including onshore and offshore LNG regasification facilities; (iii) the national electricity transmission network and its compressor stations and dispatching centres; (iv) the management activity and key properties related to the use of the networks and infrastructures referred to the previous points.
(6) This sector includes, inter alia, (i) ports of national interest; (i) airports of national interest; (iii) national spaceports; (iv) the national railway network of relevance for the trans-European networks; (v) freight villages (in Italian, "interporti") of national importance; (vi) road and motorway networks of national interest.
(7)Assets of strategic relevance in the communications sector are identified in the dedicated networks and in the public end-user access network in connection with metropolitan networks, in the service routers and in the long distance networks, as well as facilities used for the provision of end-user access to services covered by universal service obligations and broadband and ultra-wideband services, and the associated contractual relationships. This includes dedicated elements, even where use is not exclusive, for connectivity (voice, data and video), security, control and management relating to fixed location telecommunications access networks.

Authors: Luca Lo Po' and Claudio Saba.

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