4. Securities that entitle the holder to special rights and special powers
Securities that entitle the holder to special rights
No securities that entitle the holder to special rights are issued. The Bylaws do not provide for the issuance of shares with increased voting rights.
Several European Union member states, including Italy, have introduced certain special powers that the government can exercise with regard to the operations and ownership structures of companies operating in sectors considered to be strategic and of national interest. These powers generally take the form of the government’s right to control certain changes in the ownership structure of companies subject to such provisions and/or a right to veto certain strategic decisions.
Following surveys conducted by EU bodies on Italian regulations on special government powers15 (the so-called “golden share” regulations), and after several regulatory changes16, the Italian government issued Decree Law No. 21 of 15 March 2012 (converted, with amendments, by Law No. 56 of 11 May 2012), which governs “special powers over ownership structures of companies in the defence and national security sectors, as well as for assets of strategic importance in the energy, transport and communication sectors” (“Decree Law 21/2012”). The new legislation provides for distinct regulations governing the defence and national security sectors, on the one hand, and “strategic assets in the energy, transport and communication sectors” on the other.
Reference regulatory framework for Snam
As far as Snam is concerned, Article 2 of Decree Law 21/2012 stipulated that one or more regulations, adopted by a Presidential Decree, would identify the networks, plants, assets and partnerships of strategic importance to the national interest in the energy, transport and communication sectors (“Significant Assets”).
It is therefore stipulated that any resolution, act or transaction adopted by a company that holds one or more Significant Assets and results in changes in the ownership, control or availability of said Significant Assets, or a change in their purpose, must be reported by the Company to the prime minister within ten days and, in any case, before it is implemented. Resolutions passed by the Shareholders’ Meeting or the management bodies concerning the transfer of Subsidiaries that hold the aforementioned Significant Assets must be reported within the same timeframe.
Within 15 days of the notification, the prime minister may, by issuing a decree adopted pursuant to a resolution of the Council of Ministers: (i) declare a veto; (ii) impose specific provisions or conditions, if this is sufficient to ensure the protection of the public interest. If 15 days have passed since the notification and the prime minister has not adopted any measures, the operation may be carried out.
It is also stipulated that the acquisition, for any reason, by a non-EU party of shareholdings in companies that hold Significant Assets must be reported to the prime minister within ten days. If the acquisition constitutes a serious threat to the essential interests of the state, the prime minister may, by means of a decree adopted pursuant to a resolution of the Council of Ministers, within 15 days of the notification: (i) make the effectiveness of the acquisition conditional upon the assumption by the buyer of commitments aimed at ensuring the protection of the aforementioned interests; or (ii) block the acquisition, in exceptional cases in which there is a risk to the protection of the interests in question that cannot be eliminated through the assumption of specific commitments. Once again in this case, if 15 days have passed since the notification and the prime minister has not adopted any measures, the acquisition may be carried out.
The law also stipulates that such powers may be exercised “exclusively on the basis of objective and non-discriminatory criteria”.
The aforementioned regulation, based on Article 3 of Decree Law 21/2012, repealed the regulation on the “golden share”17 as of the entry into force of the aforementioned decrees and regulations aimed at identifying networks and plants of strategic importance to the national interest in the energy, transport and communication sectors.
By means of Prime Ministerial Decree No. 253 of 30 November 2012, the “regulations on identifying assets of strategic importance and key strategic assets in the defence and national security sectors” were adopted, into which Article 2-bis on “assets of strategic importance in the communication sector” was inserted by means of Prime Ministerial Decree No. 129 of 2 October 2013. Furthermore, on 6 June 2014, the Official Gazette published the two decrees implementing Article 2, paragraph 9 of Decree Law 21/2012, as approved by the Council of Ministers on 14 March 2014, which identify: (i) assets of strategic importance in the energy18, transport and communication sectors (Presidential Decree No. 85 of 25 March 2014) and (ii) procedures for implementing special powers in the energy, transport and communication sectors (Presidential Decree No. 86 of 25 March 2014). Lastly, on 2 October 2014, the text of the Prime Ministerial Decree of 6 August 2014 was published, containing the “regulations on the coordination activities of the prime minister in preparation for the exercise of special powers over shareholder structures in the defence and national security sectors, and on assets of strategic importance in the energy, transport and telecommunication sectors”.
15 Decree Law No. 332 of 31 May 1994, converted, with amendments, by Law No. 474 of 30 July 1994.
16 Prime Ministerial Decree of 10 June 2004; Prime Ministerial Decree of 20 May 2010.
17 Decree Law No. 332 of 31 May 1994, converted, with amendments, by Law No. 474 of 30 July 1994.
18 As far as Snam is concerned, Presidential Decree No. 85 of 25 March 2014 classifies energy networks of national interest as assets of strategic importance to the national energy system, together with related assets, including:
a) the national natural gas transportation network and the relevant compression stations and dispatch centres, as identified by the Legislative Decree No. 164 of May 23, 2000 (“Letta Decee”);
b) gas storage plants;
c) infrastructure for the supply of electricity and gas from other countries, including onshore and offshore LNG regasification plants;
d) the national electricity transmission network and the relevant control and dispatch plants;
e) management activities connected to the use of the networks and infrastructure mentioned above.