As part of a new set of rules issued in March 2022 to combat the adverse effects of the international crisis stemming from the Russia-Ukraine conflict,[1] the Italian government has introduced a pre-notification mechanism for preliminary examination of transactions to assess applicability of Italian FDI rules.
The mechanism is designed to avoid notification under FDI rules when none is required. It was created in reaction to the significant number of notifications received by the Italian government in 2020 and 2021 after the FDI scope was expanded as a result of rules issued to deal with the Covid-19 crisis.[2]
1. Pre-notification mechanism
The regulation setting forth procedural rules aimed at implementing the pre-notification mechanism was published in September 2022.[3]
Based on these rules:
- parties to a transaction have the option to file pre-notification with the government even before signing by disclosing all available information relating to the proposed transaction
- within 30 calendar days of pre-notification being filed, the government can provide the parties with one of the following responses:
- The transaction does not fall under the scope of FDI rules.
- The transaction falls under the scope of FDI rules, and formal notification is required.
- The transaction falls under the scope of FDI rules, but there are no grounds for employing veto power or imposing conditions under FDI rules.
Note that in cases (i) and (iii), the government may still require formal notification, though it must say so explicitly. Should the government fail to respond within 30 days, formal notification is automatically required.
2. Comments
As mentioned above, the pre-notification procedure was introduced recently. Because it is so new, there is no government track record that we might consult to gauge the approach to processing such filings.
However, our view is that the pre-notification should be used cautiously.
Indeed, the mechanism can be a useful tool for transactions that are not problematic from an FDI standpoint or when there is a strong argument that the transactions in question do not fall under the scope of FDI rules (i.e., filing a pre-notification prior to signing and receiving clearance from the government could help expedite the transaction overall, with no need for separate signing and closing and treating governmental approval as a condition for closing).
When, diversly, transactions involve assets that could be deemed strategic by the government, pre-notification may be a waste of time and it may be advisable to go directly to filing formal notification.
[1] For more info see our article on said rules.
[2] For more info please refer to our previous article on this topic.
[3] Decree of the Italian Prime Minister No. 133 of August 1, 2022.
