On January 6, 2023, Decree-Law No. 2 of January 5, 2023 (D.L. No. 2), containing urgent measures to implement national strategic interests, entered into effect in Italy.
Miscellaneous Measures to Strengthen the Southern Italian Economy
D.L. No. 2 amends previous legislation concerning loans to shareholders of the Banca del Mezzogiorno (Bank of the Southern Regions), adding that such loans must be provided according to market logic, criteria, and conditions, and converted into a share capital increase at the request of the respective shareholder. (D.L. No. 2, art. 1(1)(a), amending art. 1(1-ter) of Law No. 5 of February 7, 2020, on urgent measures to support the credit system of Italy’s southern regions, and to create an investment bank.)
The National Agency for the Attraction of Investments and Business Development S.p.A.-Invitalia is authorized to acquire new company shares or to grant shareholder loans according to market conditions in the event that measures are instituted to seize or confiscate steel plants, under certain amounts and other restrictions. (D.L. No. 2, art. 1(1)(b), amending art. 1(1-quinquies) of Law No. 5 of 2020.)
Special Administration of Companies of National Strategic Interest
Public entities controlling at least 30% of state-owned companies managing one or more industrial plants of national strategic interest, with the exception of those listed in the stock market, may obtain the immediate initiation of special procedures to administer such companies, provided that other administrative criteria are met. (D.L. No. 2, art. 2(1), amending art. 2, para. 2 of Decree-Law No. 347 of December 23, 2003, concerning urgent measures for the industrial restructuring of large companies in a state of insolvency.)
Remuneration of Special Directors of Large Companies in Crisis
For calculating compensation of special judicial commissioners in charge of insolvency proceedings concerning large companies in crisis and of members of the supervisory committee — which are determined by the minister of Justice in consultation with the ministers of Industry, of the Treasury, and of the Budget and Economic Planning — D.L. No. 2 provides that such amounts must be based on the respective company’s balance sheet and approved only if no further losses are produced after the declaration of insolvency. (D.L. No. 2, art. 3(1)(a), amending art. 47, para. 1(b) of Legislative Decree No. 270 of July 8, 1999 (L.D. No. 270) on the special administration of large companies in a state of insolvency.)
The compensation of judicial administrators cannot exceed the total maximum limit of 500,000 euros (about US$533,692), even in the case of collegiate appointments. (D.L. No. 2, art. 4(1), adding art. 8, para. 2(2-bis) to Legislative Decree No. 14 of February 4, 2010, on the establishment of the Register of Judicial Administrators.)
Criminal Provisions Related to Establishments of National Strategic Interest
A commissioner appointed within the special administration procedure to manage a company where criminal conduct has taken place may decide on the continuation of the company’s operations. (D.L. No. 2, art. 5(1)(a), adding art. 15, para. 1(b-bis, para. 2) to Legislative Decree No. 231 of June 8, 2001 on the administrative liability of legal entities, including those without legal personality.)
Punitive measures consisting of interdictions may not be applied to a company under special administration procedures when such measures jeopardize the continuity of the activity carried out in industrial establishments declared to be of national strategic interest, provided that the entity has eliminated the organizational deficiencies that led to the crime. (D.L. No. 2, art. 5(1)(b), adding art. 17(1-bis) to Law No. 231.)
Provisions on the Seizure of Assets
During the seizure of assets affecting industrial establishments or parts thereof declared of national strategic interest, or systems or infrastructures necessary to ensure the continuity of production, the respective judge may order the continuation of productive activities by appointing a judicial administrator. (D.L. No. 2, art. 6(1)(b) para. 1, adding art. 104-bis(1-bis.1.) to Legislative Decree No. 271 of July 28, 1989 (L.D. No. 271) on the implementation, coordination and transitional rules of the Criminal Procedure Code.)
The judge who authorizes the continuation of productive activities must adopt measures aimed at obtaining a balance between the continuation of the activities and the protection of employment, health, and the environment. (D.L. No. 2, art. 6(1)(b) para. 2, adding art. 104-bis(1-bis.1.) to L.D. No. 271.)
The judicial decision rejecting or revoking the authorization to continue activities may be appealed by the interested party, and also by the Presidency of the Council of Ministers, the Ministry of Enterprise and Made in Italy, or the Ministry of the Environment and Energy Security. (D.L. No. 2, art. 6(1)(1-bis.2.), adding art. 104-bis(1-bis.2.) to L.D. No. 271.)
Exemption from Criminal Responsibility
D.L. No. 2 eliminates the criminal responsibility of those who act in order to implement a measure authorizing the continuation of the activity of an industrial establishment or part thereof declared to be of national strategic interest when the person has acted in conformity with the mandates included in the respective measure. (D.L. No. 2, art. 7(1).)
Dante Figueroa, Law Library of Congress
March 28, 2023
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