The news had been in the air for days. Despite Italy's attempts to continue negotiations, the European Commission ultimately decided to open a infringement proceedings against Italy over the use of the golden power. The reason, clearly stated by the EU, is "the incompatibility of discretionary powers in bank mergers with European Union law in Italy." This is what emerges from the database of measures, which includes the title and number of the proceedings initiated with the formal notice and the area of intervention, namely "Financial stability, financial services, and Capital Markets Union."
The dossier had been opened last spring after the straight leg intervention of the government on the operation Unicredit - Banco Bpm. In April, through a Prime Ministerial Decree, the executive had in fact used the special powers on the takeover bid, imposing very heavy conditions on Piazza Gae Aulenti which then led the bank's CEO, Andrea Orcel, to appeal to the TAR (and now also to the Council of State) and to withdraw the offer.
The Golden Power and the Brussels reliefs
The reason for sending the letter of formal notice to Italy is its failure to comply with the Single Supervisory Mechanism Regulation, the Capital Requirements Directive, and Articles 49 and 63 of the Treaty on the Functioning of the European Union. "The Commission has raised concerns about the so-called 'Golden Power' legislation (Legislative Decree 21/2012, as amended and extended in 2021 and 2022), which grants broad prerogatives to the Italian government to review, block or impose conditions on corporate transactions in the banking sector,” highlights the note from the Berlaymont Palace.
“Although it is aimed at protecting national security and public order” the golden power legislation “as applied by the Italian authorities, risks allowing unjustified interventions for economic reasons, compromising the principles of freedom of establishment and free movement of capital in the single market. Furthermore, Italian legislation overlaps with the exclusive competences of the European Central Bank within the framework of the Single Supervisory Mechanism”, writes Brussels which, with the initiation of the infringement procedure, “invites Italy to comply with EU banking rules”.
Italy has two months to respond
Italy will now have two months to respond to the formal notice and therefore to try to prevent the infringement procedure from proceeding. The decision, expected last month, comes after a series of postponements, with the Italian government trying until the last minute to avert this outcome. The President of the Commission has reportedly also intervened on the issue, Ursula von der Leyen, which for months has tried to avoid a clash with Italy, whose support is essential for the stability of the Community executive.
“In the absence of a satisfactory response, the Commission may decide to issue a reasoned opinion,” it reads.
EU: The infringement does not concern a specific case
"The European Commission's letter of formal notice concerns the Italian legislation on special powers (Golden Powers) and is not addressed to a specific case," explained Deputy European Commission Spokesperson Arianna Podestà in the daily press briefing. She added: "Regarding the Article 21 procedure" of the European Merger Regulation, "on July 14, we raised our preliminary concerns regarding the exercise of the Golden Powers legislation in a specific Article 21 transaction. The Italian government has addressed these concerns and we are evaluating them," she added.
“These are separate cases: today's decision concerns the special powers regulation itself, without reference to any specific case, while the proceedings under Article 21 of the Merger Regulation are separate and we have not taken any decision there,” the spokeswoman added.
The reassurances of the Ministry of Economy and Finance
In a statement, the Ministry of Economy and Finance reassured: "The commission raises objections to the so-called Golden Power rule, reformed in 2022 by the Draghi government. Based on the assessments of the ruling we will respond to the comments that are brought to our attention in the competent offices. With constructive and collaborative spirit we will make a regulatory proposal that will clarify and will overcome the objections. We are convinced that this will allow us to have a shared framework of skills."
