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From Irish board approval to Borsa Italiana delisting — a stage-by-stage governance checklist for the acquisto totalitario under Article 112-bis TUF
The Irish general counsel receives the term sheet on a Thursday afternoon. The target is an Italian company listed on Euronext Milan. The deal structure on the table uses Italy's new total acquisition procedure — the acquisto totalitario, the full buyout mechanism introduced by Legislative Decree No. 47/2026. The investment committee wants to proceed. The problem: CONSOB, Italy's market regulator, has not yet published the implementing regulations that will govern offer documentation and minority-price protections. The procedure is live. The rulebook is not complete. The timeline your board sets this month will either leave room for that gap or run headlong into it / collide with it.
This checklist is built for that decision. It covers every stage from Dublin boardroom to Borsa Italiana delisting.
Legislative Decree No. 47/2026, implementing a delegation in the Italian Capital Markets Reform, inserted Article 112-bis into the Testo Unico della Finanza (the Italian Unified Finance Act, known as the TUF, Legislative Decree No. 58/1998 as amended). The new article creates the acquisto totalitario, Italy's own full buyout mechanism: an acquirer submits an irrevocable cash offer to the target company's management body, which assesses it and convenes an extraordinary shareholders' meeting. If the meeting approves, the acquirer buys out all remaining shares. The mechanism replaces — or can replace — the traditional tender offer procedure under Articles 102–111 TUF.
Two numbers define the structure. First, the consideration must be cash only, set at or above the six-month volume-weighted average price (VWAP) of the target's shares or the highest price paid by the acquirer (or persons acting in concert) in the same period — whichever is higher. Second, the squeeze-out threshold is simultaneously reduced from 95% to 90%: once the acquirer holds 90% post-closing, it can compel the remaining minority to sell.
CONSOB must adopt implementing regulations within 12 months of the decree's entry into force — that is, by April 2027. Until then, the offer-document requirements, the procedural timetable and CONSOB's review powers remain in a regulatory vacuum / are unsettled. Structuring now, before those rules take effect / are finalised, requires anticipating what they will say and building contractual flexibility into every stage.
Yes. Article 112-bis TUF imposes no nationality restriction on the acquirer. An Irish company — or an Irish-incorporated special purpose vehicle — can launch an acquisto totalitario. However, Irish solicitors advising the bidder must satisfy two parallel sets of regulatory requirements.
The first is Italian: TUF Article 112-bis, CONSOB Regulation No. 11971/1999 (the Issuers' Regulation, which will eventually be amended by the implementing rules), and the Italian Civil Code provisions on extraordinary resolutions (Article 2368 codice civile, the Italian Civil Code). The second is European: Directive 2004/25/EC (the EU Takeover Directive) as implemented in Ireland through the Irish Takeover Panel Act 1997 and the Takeover Rules published by the Irish Takeover Panel. The Irish Panel has jurisdiction when an Irish-incorporated company is the target; when the target is Italian, CONSOB is the supervising authority. But if the bidder is Irish and listed, the Irish Panel may assert concurrent disclosure and board-conduct obligations on the bidder. Confirm this in writing with the Irish Panel before announcement.
Unlike in most common-law jurisdictions, including Ireland, there is no court involvement in approving the transaction structure. In an Irish scheme of arrangement, the High Court sanctions the scheme and protects minority shareholders through judicial oversight. Under the Italian acquisto totalitario, minority protection is built into the mechanism itself rather than enforced by a court: it operates through the 10% disinterested blocking minority described below. There is no Italian court hearing between announcement and completion.
A successful acquisto totalitario moves through five stages. Plan for approximately 90 to 120 days from pre-announcement to delisting under current procedural conventions, subject to any adjustments arising from CONSOB's implementing regulations, which have yet to be published.
Stage 1 — Irish Board Approval (weeks 1–2). The Irish board must pass a formal resolution authorising the offer. Under Irish company law and the Irish Takeover Rules, directors owe duties to act in the interests of the company; those duties apply to the bidder's board independently of the Italian target's process. The resolution should authorise the irrevocable cash offer in terms specific enough to bind the board: amount, pricing floor (6-month VWAP or higher), and the intention not to launch a mandatory bid in parallel. Document the commercial rationale in board minutes. This record protects directors if the transaction later attracts Irish Panel scrutiny or shareholder challenge.
Stage 2 — Submission of the Irrevocable Offer to the Target's Management Body (weeks 2–4). The acquirer submits the irrevocable cash offer to the target's board of directors (or supervisory board, depending on the governance model). The offer must already specify the consideration at or above the pricing floor. The Italian board has a statutory duty to assess the offer and to convene an extraordinary shareholders' meeting; it cannot simply refuse without published reasons. At this stage, appoint Italian counsel admitted to advise on TUF matters and a financial adviser to produce the fairness opinion that the target board will need.
Stage 3 — Extraordinary Shareholders' Meeting (weeks 5–10). This is the most operationally critical stage, and the one with no Irish equivalent. The resolution must pass two tests simultaneously. First, the statutory supermajority: under Article 2368 of the Italian Civil Code, an extraordinary resolution of a listed company requires a favourable vote from at least two-thirds of the share capital represented at the meeting (or a higher threshold in the by-laws). Second — and this is the deal-breaker many Irish deal teams overlook — a simple majority of disinterested shareholders must also approve. Disinterested shareholders exclude the bidder and any holder of a relative or absolute majority stake exceeding 10% of share capital. A single institutional investor holding 11% who votes against, combined with smaller opponents reaching a simple majority of the disinterested pool, defeats the transaction outright.
Map the share register before the meeting is convened. Identify every holder above 10%. Assess whether any institutional investor in the disinterested pool has a structural incentive to block — for example, an index fund with a mandate to oppose dual-class or cash-only deals. This analysis belongs in week three, not week eight.
Stage 4 — CONSOB Review and Offer Documentation (concurrent with Stage 3, weeks 4–10). CONSOB will review the offer document filed by the acquirer. Until the implementing regulations are published, the content requirements follow a combination of the existing Issuers' Regulation and CONSOB's evolving interpretive practice. Build the offer document to the highest existing standard: include the pricing methodology, the fairness opinion, the acquirer's financing sources, and a statement of intent regarding the target's business post-acquisition. Allow at least 15 additional business days in the timeline as a regulatory buffer for CONSOB queries.
Stage 5 — Settlement and Delisting (weeks 10–16). After CONSOB clearance and meeting approval, shares are transferred and consideration is paid. Borsa Italiana (the Italian stock exchange, part of Euronext) processes the delisting upon notification that the conditions are met. The squeeze-out at the 90% threshold can be exercised concurrently if the acquirer does not reach 100% through the meeting resolution. The formal demand before enforcement — a precetto — is not required at this stage; the squeeze-out right is exercised by filing with CONSOB and Borsa Italiana directly.
The pricing floor has two components, and the higher of the two governs. The first is the six-month VWAP of the target's shares on Euronext Milan immediately before the offer date. The second is the highest price paid by the acquirer or persons acting in concert for target shares in the same six-month window. This approach follows the principle introduced by the 8 October 2025 Council of Ministers decree reforming the TUF, which also shortened the mandatory bid price reference period from 12 to six months — a directly applicable precedent for pricing methodology under Article 112-bis.
One practical consequence: if an Irish acquirer has been building a stake on-market in the six months before the offer, the highest on-market price paid — not the VWAP — becomes the pricing floor. A stake-building programme that pushes the price upward can inadvertently set a floor higher than the target's intrinsic value. Agree with your financial adviser how stake-building activity will affect the price calculation before any shares are purchased.
CONSOB must publish implementing regulations by April 2027. The regulator has a track record of consulting the market before finalising major procedural rules — the timetable for the CONSOB Issuers' Regulation amendment following the 2019 TUF reform took approximately nine months from consultation paper to final text. Expect a public consultation paper in the third or fourth quarter of 2026, followed by a comment period of 60 to 90 days, and final rules in early to mid-2027.
Until then, an Irish acquirer has two options. The first is a hybrid structure: file the acquisto totalitario offer in parallel with a precautionary tender offer filing, preserving optionality if CONSOB requests a procedural format that does not yet exist in the implementing rules. The second is a standby approach: complete all pre-announcement preparation — Irish board resolution, fairness opinion, share register analysis, Italian counsel appointments — and hold until CONSOB's consultation paper clarifies the documentation standard before formally submitting the offer to the target's management body. The standby approach is lower-risk but adds three to six months to the timeline.
The disinterested simple-majority requirement is the structural feature of the acquisto totalitario that most frequently surprises decision-makers trained in Irish or UK takeover practice.
Nemo iudex in causa sua — no one should be judge in their own cause. That maxim sits at the heart of the disinterested majority requirement: the acquirer and its concert parties are excluded from the vote on the very deal they have proposed. What remains is a pool of shareholders who may have bought into the target on the expectation of a higher price, who may have a short position, or who may simply oppose the transaction on governance grounds. A holder of even 10.1% of share capital, voting with enough smaller holders to constitute a simple majority of that pool, stops the deal without any judicial review and without any remedy for the acquirer short of relaunching.
This has no equivalent in Irish practice. Under the Irish Takeover Rules, a scheme of arrangement requires approval by a majority in number representing 75% in value of the members voting — but disinterested shareholders are not segregated into a separate class with a separate simple-majority requirement that the acquirer cannot influence at all. The Italian mechanism is structurally harder to pass in a contested or semi-contested situation.
As H.L.A. Hart observed in The Concept of Law, procedural rules are not merely technical: they define what counts as a valid exercise of power. The disinterested-majority rule is not a formality. It is the mechanism by which Italian law allocates the power to decide this transaction to the people with the least interest in favouring it. Irish boards must internalise that the vote is not theirs to win by persuasion alone — the composition of the disinterested pool is the governing variable.
In our files, the most common delay on cross-border acquisitions of Italian listed companies arises not at CONSOB but in the parallel Irish compliance track: specifically, the failure to confirm early with the Irish Takeover Panel whether the bidder's disclosure obligations under the Irish Takeover Rules are triggered by the announcement of an offer for a non-Irish target. We have seen that query absorb three to four weeks when it should take three to four days. Raise it in the first week, in writing, before the announcement date is fixed.
Does the acquisto totalitario replace the traditional Italian mandatory tender offer?
Not necessarily. The two mechanisms coexist. If the acquirer crosses the 30% mandatory bid threshold (introduced by the October 2025 TUF reform), a mandatory tender offer obligation is triggered independently. The acquisto totalitario is an alternative route to 100%, not an exemption from the 30% threshold.
What happens if the extraordinary shareholders' meeting rejects the offer?
The deal fails. The acquirer receives no legal remedy under Article 112-bis. The target company remains listed. The acquirer may relaunch — but if it has crossed the 30% threshold in the process, it may simultaneously face a mandatory bid obligation. Map the post-failure scenario before the meeting is convened.
Must the consideration under an acquisto totalitario be cash only?
Yes. Article 112-bis TUF requires cash-only consideration. Share-for-share or mixed cash-and-share structures are not available under this mechanism. An Irish acquirer wishing to offer its own shares must use a different instrument — such as a voluntary tender offer under Articles 102–104 TUF — and accept the different procedural and pricing rules that apply to that route.
HREFLANG BLOCK:
Editorial Team — Panato Law Firm Staff
