6. Special powers of the State
Decree-Law No. 21 of 15 March 2012, converted into law with Law No. 56 of 11 May 2012, contains rules concerning special powers on corporate ownership in the defence and national security sector, as well as for the activities of strategic importance in the energy, transportation and communication sectors. The Decree-Law affects regulation of the so-called special powers, by re-writing conditions and modalities of exercise of the State’s special powers for privatized companies, to bring the national regulation into line with the rules provided by the Treaty on the Functioning of the European Union.
With regard to the energy sector, the Decree-Law confers upon the Government: (i) a power of veto in relation to resolutions, actions or operations adopted by companies that own strategic assets in the energy sector, on condition that such resolutions, acts or operations result in a loss of control or availability of the assets or a change in their use; and (ii) a power to impose certain duties or to oppose the acquisition by non-EU persons of controlling interests in said companies.
Pursuant to Decree-Law 21/2012, Snam is required to issue notification in the event of changes to the ownership, control, availability or purpose of networks, plants, assets and relations of strategic importance to the national interest (“Relevant Assets”)12. The Company notifies the Prime Minister within ten days of adoption of any resolution, act or operation affecting the Relevant Assets and in any event before it is implemented. Resolutions passed by the Shareholders’ Meeting or the management bodies concerning the transfer of Subsidiaries that hold the aforementioned Relevant 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:
- declare a veto; and
- impose specific provisions or conditions, if this is sufficient to ensure the protection of the public interest.
If 15 days pass without the Prime Minister adopting any measures, the operation may be carried out.
Pursuant to the same procedures and time frames, notification must also take place if the acquisition of equity investments in companies that hold Relevant Assets by non-EU entities results in a stable holding for the acquirer, due to its assumption of control of the company. If the acquisition poses the threat of serious harm to the fundamental interests of the State, the Prime Minister may:
- make the validity of the acquisition conditional on the acquirer’s assumption of commitments intended to guarantee the protection of the aforementioned interests; and
- oppose the acquisition, in exceptional cases involving risks to the protection of the aforementioned interests that cannot be eliminated through the assumption of specific commitments.
The law also stipulates that such powers may be exercised “exclusively on the basis of objective and non-discriminatory criteria”.
12 Article 2 of Decree-Law 21/2012 provides for the identification of assets considered significant to national interest in the energy, transport and communication sectors to take place through one or more regulations adopted by presidential decree. 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) strategically important assets in the energy, transport and communications sectors (Presidential Decree No. 85 of 25 March 2014); and (ii) procedures for activating special powers in the energy, transport and communications 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”. Specifically, the Relevant Assets include the national natural gas transportation network and the relative compressor stations, dispatch centres, gas storage plants, onshore and offshore LNG regasification plants and management activities associated with the use of the above networks and infrastructure.