The reform of the "Golden Power" and the balance of the transaction

In the current context, assessing the applicability of the Golden Power regulations is an essential step for those involved in M&A and corporate mergers. The regulatory scope has expanded over time and the subject has become more complex. For this reason, verification must be carried out from the preliminary stages of the transaction.

Golden Power is now the tool through which the government protects national strategic interests in transactions affecting assets that are essential to the country's security. Introduced by Decree Law No. 21 of 15 March 2012, replacing the previous 'golden share' regime, it grants the government special powers: veto, imposition of requirements or opposition to the transaction. These powers may be exercised when the transaction changes the ownership structure, control or availability of assets considered strategic.

In summary, a proper Golden Power analysis is now an integral part of legal and regulatory due diligence and contributes significantly to the overall planning of the transaction.

Failure to notify or late notification can have significant consequences: delays, additional costs and, in the most serious cases, a direct impact on the very feasibility of the deal. Understanding when the notification obligation arises is therefore not a marginal issue, but a central element of the pre-deal strategy.

The 'challenge' is to balance, on the one hand, the correct assessment of the actual applicability of the Golden Power legislation – and therefore the need to notify the transaction to the government – and, on the other hand, the need to protect the client's interests and ensure the overall stability of the transaction.

The progressive expansion of the scope of application

Over time, the scope of the regulation has been progressively expanded to include industrial sectors of strategic interest.

In addition to the defence, national security, energy, transport and communications sectors, the scope now also includes – in implementation of Regulation (EU) 2019/452 – critical physical and digital infrastructure, dual-use technologies, artificial intelligence, semiconductors, biotechnology, access to sensitive information and media pluralism.

The legislation provides for mandatory notification of all resolutions, acts and transactions that could change the ownership, control or availability of strategic assets, allowing government intervention in the event of a serious threat to public interests.

Once the notification has been completed in accordance with the law, a two-stage administrative procedure is initiated: an initial preliminary investigation phase aimed at acquiring the factual elements necessary to frame the transaction; a second decision-making phase characterised by broad discretion and left to the prudent assessment of the Government, given the nature of the interests involved and the strategic context in which the assessment takes place.

The new features of the 'Transition 5.0' decree

The amendments approved by Law No. 4 of 15 January 2026, converting Decree No. 175/2025 ("Transition 5.0"), introduce important changes to the Golden Power legislation, affecting in particular transactions in the banking and insurance sectors. It is no secret that this reform stems from the 'UniCredit-Banco BPM' affair, in which the exercise of special powers by the government raised concerns on the part of the European Commission, leading to a request for the legislation to be amended to avoid interference with the ECB's exclusive competence in the field of banking supervision and with the fundamental freedoms of establishment and movement of capital.

The main changes are as follows:

1)    For banks and insurance companies, in transactions involving changes in ownership or control of strategic companies - or acquisitions of shareholdings in companies holding strategic assets - the exercise of the Government's special powers is subject to the completion of proceedings pending before the competent European authorities, i.e. the ECB for prudential supervision aspects and the EU Commission for antitrust and competition aspects. This choice aims to ensure the consistency of the national system with the European regulatory framework, giving hierarchical priority to the technical assessments of EU institutions.

2)    Among the prerequisites for exercising special powers, national economic and financial security is expressly introduced when the essential interests of the State are not adequately protected by sectoral regulation. This is a significant expansion of the substantive scope of Golden Power.

Council of State ruling no. 9619/2025: the principle of effectiveness

In this context, a recent orientation expressed by administrative case law on the interpretation of the conditions for the application of Golden Power is also relevant. The intervention of the Council of State offers an important systematic interpretation for operators called upon to assess, in their daily practice, whether a given transaction should be notified or not, suggesting objective and verifiable criteria that can guide professional assessment and reduce the margin for interpretative uncertainty.

The ruling of the Council of State, Section IV, 5 December 2025, no. 9619, affirms the need for a rigorous and restrictive interpretation of the conditions for applying Golden Power.

The Council of State has clarified that the exercise of special powers is subject to verification of an immediate and concrete effect on ownership structure, control or availability of strategic assets. The mere possibility or potential impact is not sufficient: State intervention cannot be transformed into generalised and preventive control over transactions that do not actually alter the interests protected by the legislation. In the absence of an actual change in ownership, control or availability of strategic assets, both the prerequisite for the notification obligation and the very justification for public intervention cease to exist.

The decision also emphasises that special powers cannot be used as instruments of economic or industrial policy, detached from the protective purposes that inspire the regulation. The Council of State thus refers to the principles of proportionality, reasonableness and predictability, in line with European Union law, which require a strict balance between the public interest and freedom of economic initiative.

The principles set out by the Council of State are part of the fight against the phenomenon of so-called 'over-notification', which is increasingly widespread in practice as a result of an (excessively) cautious approach by the parties involved in an extraordinary transaction.

Operational implications for M&A transactions

In light of the renewed regulatory framework and administrative case law, extraordinary transactions now require a more structured and informed approach. The assessment of whether a transaction is subject to notification can no longer be limited to verifying whether the target belongs to a 'sensitive' sector: a detailed analysis of the concrete impact of the transaction on strategic assets is required.

In this context, the timely involvement of specialised professionals from the early stages becomes a determining factor for the success of the transaction.

Due diligence must go beyond a formal verification of the relevant sectors, focusing on the actual nature of the assets held, their strategic importance, the concrete ways in which the transaction affects ownership, control and availability, and the existence of objective conditions that could justify public intervention.