The EU Commission's warning to the government regarding the UniCredit case

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The government's decision on April 18 to exercise special powers (golden power) to protect national security, "in the form of imposing specific requirements," in relation to UniCredit 's voluntary public exchange offer for all Banco BPM shares, has opened up a variety of fronts. There is the parliamentary front, with several senators from the governing Democratic Party requesting a review of both the legal basis for the exercise of special powers and certain provisions of the decree. There is the judicial front, with the recent ruling by the Lazio Regional Administrative Court (commented on in Il Foglio on July 12 ) annulling two of the four requirements imposed by the government decree. There is also, last but not least, the European front, with the European Commission releasing its preliminary assessment of the conditions imposed on the acquisition of BPM .

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To understand the scope of this assessment, it is necessary to consider the subject matter of the transaction, the parameters of the judgment, the nature of the judgment, and its possible effects. The transaction falls within the scope of the European market, so it is inappropriate to speak of interference by the European Union . The parameters of the judgment are established by Article 21 of the Merger Regulation. However, they are not simply the protection of competition, for which the Commission has already approved the transaction undertaken by UniCredit. They include the balancing of economic aspects with those related to national security .

The Commission observes (also in light of the TAR ruling) that national governments can certainly act to protect such an interest, but must do so in compliance with the general principles of European Union law, particularly proportionality . It is therefore not enough to assert that a certain condition is justified by the public interest: it must be demonstrated that the measure does not impact the interests of the companies involved more than is strictly necessary. The Commission's assessment is therefore not a simple assessment . It requires a comprehensive assessment of all relevant aspects, which is why it noted that the government's decision is insufficiently reasoned. It therefore issued a clear warning, asking the government to submit its observations.

While we await further developments, two paradoxes stand out. The first is that the special powers, designed to monitor foreign investment in our country, are being used against two domestic operators, not non-European ones. The second paradox is that the government has declared its intention to act constructively with the Commission, but has done so belatedly, without having previously notified it of its decision.

This matter must be taken very seriously, because a final, critical assessment would lead to the opening of infringement proceedings before the Court of Justice . This is an undesirable outcome.

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