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Why the 10-Day Filing Clock, a Fine Up to 200% of Deal Value, and Italy's 2026 Sequencing Reform Make Pre-Signing Diligence Non-Negotiable
The Italian government blocked or conditioned 18 transactions under the Golden Power regime in 2022 alone — a number that rose sharply after the COVID-era expansion of the sectors covered. That figure sits in the background of every M&A desk in Rome and Milan. Yet US deal teams frequently arrive at the notarial deed of sale stage having treated Golden Power as a formality rather than a threshold risk. The enactment of Law No. 4 of 15 January 2026 (Legge 15 gennaio 2026, n. 4) — which restructured the procedural framework for financial-sector deals — makes that assumption more dangerous than it has ever been.
The short answer is: it depends on the sector and the size of the stake, but the threshold is lower than most US buyers expect, and the obligation is compulsory, not optional.
Italy's Golden Power framework is based on Decree-Law No. 21 of 15 March 2012, enacted as / transposed into Law No. 56 of 11 May 2012 (D.L. 21/2012, convertito con L. 56/2012), as substantially amended by Law No. 21 of 2022 and most recently by Law No. 4 of 15 January 2026. It gives the Presidency of the Council of Ministers (Presidenza del Consiglio dei Ministri) — Italy's equivalent of the executive centre of government, not a sectoral regulator — power to impose conditions, prescribe behavioural undertakings / conditions, or veto foreign acquisitions affecting assets designated as strategically important.
For a US buyer, the trigger is reaching or exceeding 10% of voting rights where the value of the holding is at least €1 million, in sectors covering critical infrastructure, critical technologies, data and AI, energy, transport, communications, and health. Defense and 5G security trigger notification at 3% of voting rights. EU-resident buyers face a lighter regime and in some sectors are exempt entirely. Unlike the US Committee on Foreign Investment in the United States (CFIUS) process — where parties typically self-identify risk and may proceed without filing unless the transaction is a mandatory declaration — Italy's Golden Power notification is obbligatoria: silence is a violation, not a legitimate choice.
The sectors covered are defined by a series of implementing decrees (DPCM) issued under the 2012 law and updated through 2022. They include defence and national security, energy production and distribution, transport and logistics infrastructure, electronic communications (including broadband and 5G networks), financial infrastructure (including payment systems and credit institutions), health and pharmaceutical manufacturing, critical technologies (semiconductors, cybersecurity, artificial intelligence, robotics, dual-use goods), water, agri-food in certain circumstances, and media.
The financial sector deserves particular attention in 2026. The Law No. 4 reform specifically addresses transactions in the financial, credit, and insurance sectors that are also subject to either the EU Merger Regulation (Council Regulation (EC) No. 139/2004) or prudential review by the European Central Bank under the Single Supervisory Mechanism. For those deals, the Italian government is now prohibited from issuing its Golden Power determination until both the European Commission and the ECB have completed their own assessments. This sequencing rule — EU-level clearance first, Italian government second — is a structural change. It does not reduce Italian scrutiny; it reorders it. The standstill period … now runs in two consecutive stages, and an SPA that only anticipates one condition precedent will leave the parties in legal limbo.
Before Law No. 4/2026, a US buyer of an Italian bank, insurer, or payment institution could — in principle — receive Golden Power clearance before or in parallel with EU regulatory approvals. In practice, the Italian government tended to wait, though no statutory obligation required it. The 2026 reform converts that practice into a statutory bar. The Italian government cannot exercise its Golden Power powers until the EUMR and ECB processes are complete.
The practical consequence for conditions-precedent drafting is immediate. A pre-2026 SPA structure for a financial-sector deal typically lists Golden Power clearance as one CP among severall, running concurrently. Under the new sequencing rule, that structure is no longer operable. The conditions precedent must now be drafted in sequence: EC merger clearance and ECB supervisory approval form tier one; Golden Power determination forms tier two, which cannot begin until tier one is complete.
The Italian government's 45-day review clock starts from the date of a complete notification. A 20-day extension is available where the Presidency of the Council of Ministers requires additional information. With sequencing, an optimistic timeline for a financial-sector deal now runs: EC merger review (potentially Phase I at 25 working days), plus ECB qualifying-holding review (up to 60 working days), plus Italian Golden Power review (45 working days, with a possible 20-day extension). On a realistic timetable, expect six to nine months before the deal can close.
The first trap is the notification clock. The mandatory 10-day window for Golden Power notification runs from the date the investor becomes aware of the trigger event — not from signing, not from closing. In an SPA, the investor typically becomes aware of the deal structure well before exchange. If the notification obligation arises on execution of a binding term sheet or a heads of agreement, the 10-day clock has already started by the time the SPA is being finalised. US deal counsel who calendar Golden Power notification for the closing date are already late.
The second trap is the intra-group carve-out that does not exist. Many US buyers assume that a reorganisation within an existing Italian group — moving an asset from one subsidiary to another, or restructuring a holding chain — falls outside Golden Power because no new foreign investor is entering the picture. The law does not agree. Intra-group transactions require notification if they affect the governance or operational continuity of a strategic asset, even where economic ownership does not change. This is a consistent source of unexpected filings in restructuring transactions.
The third trap is the fine structure. Unlike most administrative penalties in the European Union, the Golden Power non-notification penalty is not a fixed ceiling. It is up to 200% of the transaction value. On a $500 million acquisition, that is a potential fine of $1 billion — almost certainly the largest single line item in the deal's risk matrix. The government may also declare the transaction null and void and order divestiture within a prescribed period. There is no equivalent of a CFIUS penalty mitigation agreement as a de facto backstop.
Qui tacet consentire videtur ubi loqui potuit ac debuit — silence implies consent where the party could and should have spoken. In Golden Power law, the inversion is fatal: the party that stays silent has not consented, it has defaulted, and the deal is void.
As the legal scholar Lawrence Lessig observed in a different context: "The architecture of a system is its politics." Italy's Golden Power architecture is not neutral. It is designed to preserve state leverage over strategic assets, and Law No. 4/2026 reinforces that leverage precisely where US financial buyers are most active.
Unlike in most common-law jurisdictions — where there is no formal mechanism to obtain advance government confirmation that a filing is required — Italy's Golden Power regime provides a pre-notification consultation (procedura di pre-notifica) introduced under the implementing decrees of Law No. 21/2022. A buyer may submit a preliminary information package to the Secretariat-General of the Presidency of the Council of Ministers and receive a formal indication of whether a full notification will be required.
This procedure has no equivalent in the US CFIUS framework, where parties either self-identify a mandatory declaration or choose a voluntary notice. In Italy, the pre-notification mechanism allows the buyer to obtain binding guidance before the 10-day clock starts, before the SPA is signed, and before the due-diligence phase concludes. It typically runs 15 to 20 working days. US deal teams almost never use it because it is not visible in the English-language M&A commentary on Italian deals. That omission is a significant missed opportunity.
The consequences are set out expressly in the law: the transaction is null and void (nullo under the Italian Civil Code), the government may order mandatory divestiture within a prescribed period, and the acquirer faces a fine of up to 200% of transaction value. The nullity operates erga omnes — it affects the corporate structure, not merely the contractual relationship between buyer and seller.
In 2024, the Council of Ministers exercised its Golden Power powers with conditions in two high-profile transactions involving non-EU buyers in the technology and infrastructure sectors, confirming that the government actively monitors and acts. The Italian Court of Administrative Justice at the Council of State (Consiglio di Stato) has confirmed in administrative appeals that Golden Power determinations are acts of government discretion subject to limited judicial review at regional administrative courts (TAR) — the firm advises on proceedings at that level — and appeals. The standard of review is deferential; challenging a veto is costly and rarely successful.
In our files, the most common mistake is the timing of the notification decision itself. US counsel reviewing an SPA frequently treat the 45-day review window as the operative timeline, but the 10-day obligation to notify post-awareness is where the exposure begins. We see this deadline missed when the buyer's internal approval process — board resolutions, investment committee sign-off, CFIUS self-assessment — runs in parallel with SPA negotiation and the deal team does not flag the Italian notification trigger until the execution meeting.
Does every US acquisition of an Italian company require a Golden Power notification?
No. The obligation arises only when the target operates in a designated strategic sector and the acquisition reaches the relevant threshold — 10% of voting rights with a value of at least €1 million in most sectors, 3% in defence and 5G. A US buyer taking a minority stake below these thresholds in a non-strategic business has no filing obligation.
Can the SPA include a long-stop date if Golden Power clearance is delayed?
Yes, and it must. With Law No. 4/2026 sequencing financial-sector deals, the conditions-precedent structure needs both a substantive tier (EU and ECB clearances) and a procedural tier (Italian Golden Power). The long-stop date should be set no earlier than nine months from signing to absorb the full sequential timeline, with a mutual extension option if the Presidency requests additional information.
Is the pre-notification procedure legally binding on the Italian government?
The formal indication given under the pre-notification process is not an irrevocable waiver of the government's Golden Power powers, but it is a strong procedural signal that reduces deal uncertainty. If the government indicates that no full notification is required and the facts do not change, the risk of subsequent enforcement action is substantially lower. US buyers should use it as a diligence tool, not a guarantee.
HREFLANG BLOCK:
Editorial Team — Panato Law Firm Staff
