(by Francesca Zambuco - lawyer and AIDR partner) Italy was the first European country to be overwhelmed by the pandemic, but it risks being the last to intervene in support of companies and to protect national strategic assets with dramatic consequences on the post - coronavirus.
A month after the adoption of the first measure to combat the effects of the pandemic, measures are urgently awaited to support businesses and protect national strategic assets.
First of all, state aid of an extent and extent at least equal to that adopted by other European countries is urgent and, with equal speed, also considering the alarming calls from Copasir, the discipline regarding golden powers must be extended to avoid the foreseeable (and expected) speculation on companies of national strategic interest.
State aid
In the last two weeks, notifications to the European Commission of requests for approval of business support schemes and the related authorization decisions in near real time have multiplied.
The governments of the main European states have provided for various forms of aid: from direct grants to loan guarantees and / or the provision of subsidized interest rates to repayable advances.
The amounts allocated offer a particularly eloquent picture of the seriousness of the interventions. France has provided 700 million euros in the form of a loan guarantee, to which is added a further measure which intends to mobilize up to 300 billion, and direct grants of 1,2 billion. Germany has planned 45 billion direct grants and three different loan guarantee schemes for all businesses. Spain has allocated 20 billion, Portugal 3, the United Kingdom has introduced two different measures, 654 million direct grants for small and medium-sized enterprises and a loan guarantee scheme, while Ireland has allocated € 200 million in the form of repayable advances.
If even further from our economic model, the interventions of the Nordic countries cannot be neglected, which at least to date are certainly the least afflicted by the health emergency. Estonia has already provided aid of 1,55 billion divided between guarantee measures, working capital loans and investment loans; Latvia has introduced loan guarantees of 250 million and so Denmark for a total value of around 140 million euro. Just Denmark, however, before the Commission introduced a temporary framework for the provision of state aid in the context of the pandemic, and even before the contagion had serious economic repercussions on the country, asked the Commission, and obtained in 24 hours , the authorization for aid amounting to 12 million euros for companies forced to cancel events.
The Danish example confirms, in addition to the well-known virtuosity of the rulers, that the tools were there and are there: simply activate them.
The Treaty on the Functioning of the European Union, in fact, provides that aid "intended to remedy damage caused by natural disasters or other exceptional events" is compatible with the common market (art. 107, paragraph 2, letter b)) . France, for example, has made use of this provision to allow the license holders to operate in France to defer the payment of the aviation taxes due from March to December 2020. But not only. Another provision, according to which the measures described above have been approved, establishes that aid intended to "remedy a serious disturbance in the economy of a Member State" is compatible with the internal market (art. 107, par. 3, letter b)).
To date, Italy has provided direct subsidies for only 50 million euros and only for companies that operate, or decide to operate, in the sector of the production of medical devices and personal protection. For small and medium-sized enterprises active in all sectors, on the other hand, the introduction of a guarantee scheme on loans worth 1,73 billion euro with a state risk assumption of 33% is a few days ago.
There are those who do not see that more is needed and "Whatever it takes". The measures must be Dragonian (ie to Draghi and not to Dracone) in all fields starting with aid to start again.
The golden powers
Golden powers are the special intervention powers of the Government, such as the veto or the application of measures and conditions, on operations of non-European subjects with effects on corporate structures in the so-called strategic national sectors.
Almost all Member States have legislation similar to the Italian one which allows strategic control over foreign investments, meaning foreign non-EU subjects, and all are working in two directions: extending the concept of foreign to European countries and expanding the list of assets to be considered strategic.
Spain has already done so. Yesterday a royal decree-law was approved extending the application of the discipline to acquisitions that exceed 10% of the share capital of Spanish entities operating in strategic sectors, including by investors residing in the European Union and in the European Economic Area .
In Italy, weeks have passed since Copasir sounded the alarm, while the first written trace of an intervention to revise the discipline on golden powers can be read only in the amendments presented to the Cura Italia decree and published on Tuesday.
With the amendments in question, two absolutely appropriate interventions are proposed. First of all, to authorize Cassa Depositi e Prestiti to purchase securities, bonds and share capital, also by way of derogation from the statutory limits, of companies operating in sectors of strategic importance and of companies whose brand has been defined as "historic brand", as well as those of high value for the Italian production chains, in order to preserve their production in Italy.
Secondly, it is proposed to extend the golden powers discipline to the credit and insurance sectors, in addition to those already considered strategic of defense and national security, including those with a high technological intensity, energy, transport, communications.
That in the Cura Italia decree or in another ad hoc provision, it is time to intervene on this discipline, as the European Commission also invited to do last 26 March.
As a result of the pandemic, new sectors have become strategic: primarily banks and insurance companies, but also pharmaceutical and hospital technology companies and, considering the price of wheat higher than that of oil, companies operating in the agro-food sector could also be considered as such. Not only. At least during the emergency, the acquisitions, of European and non-European subjects, of these strategic assets must be suspended. In the current context, in fact, traditional economic rules do not apply and speculation is far from a theoretical possibility.
Concluding remarks
It is clear that there is no aid to businesses or economic recipes free from vices and imperfections. It is equally evident that global geopolitical balances in the near future are not predictable.
However, not acting and not doing it quickly can have disastrous consequences and, like Voltaire, one of the fathers of the Enlightenment taught us, sometimes the best is the enemy of good.
In keeping with what other European countries are doing, it is a duty to provide serious aid to businesses and families, to avoid that the post-pandemic is worse than the pandemic and the virus survivors are starving to death.
It is equally necessary, albeit exceptionally and temporarily, to seriously protect national strategic companies, avoiding that while Italy is engaged in counting the fallen, others are committed to defrauding their remains.
When we can leave the house, we will have to start again and we will have something to do it, possibly ours.