在意大利构建跨境收购：金权、外国直接投资、税收和就业考虑因素

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A Comprehensive Guide for Foreign Investors Engaging in the Acquisition of Italian Enterprises

Italy remains one of the most attractive jurisdictions in Europe for foreign direct investment, offering access to advanced manufacturing, infrastructure, energy, technology, luxury goods and life sciences markets.

然而，在意大利构建跨境收购需要的不仅仅是标准的并购分析。国际投资者必须综合考虑以下因素

• corporate and transactional structuring;
• Italian Golden Power rules;
• EU foreign investment screening requirements;
• merger control and sector-specific approvals;
• tax and DAC6 compliance;
• employment law implications.

Failure to address these issues at an early stage can lead to delays, mandatory filings, regulatory conditions or, in certain cases, governmental veto powers.

在意大利进行收购时需要帮助？我们的跨境并购律师 经常为国际投资者、私募股权基金和跨国集团提供境内收购、合资和战略投资方面的咨询服务。

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How Should Foreign Investors Structure an Acquisition in Italy?

The optimal transaction structure depends on the target’s business, regulatory profile, tax position and long-term integration strategy.

The most common acquisition structures include:

• Share acquisitions;
• Asset acquisitions;
• Business transfers (azienda transfers);
• Cross-border mergers;
• Joint ventures.

Each option carries different implications in terms of liabilities, regulatory approvals, taxation and workforce management.

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Share Deal vs Asset Deal in Italy: Which Structure Is Better?

Share Deals: Acquiring an Italian Company Through Equity Interests

A share deal is generally the preferred route for international investors seeking continuity of operations.

The buyer acquires shares or quotas in an Italian company—typically an S.r.l. or S.p.A.—and indirectly acquires the underlying business.

Advantages of a Share Deal

• Continuity of contracts and commercial relationships.
• Preservation of permits, licences and regulatory authorisations.
• Simplified business continuity after closing.
• Easier integration of strategic assets.

Key Risks

• Assumption of historical liabilities.
• Tax exposures.
• Regulatory and compliance risks.
• Potential Golden Power filings.

Comprehensive legal, tax and regulatory due diligence therefore becomes critical.

计划在意大利进行股份收购？及早进行尽职调查可大大降低成交后的风险，并加强 SPA 保护。

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When Is an Asset Deal Preferable?

In an asset acquisition, the investor purchases selected assets and liabilities rather than the target company itself.

This structure is often used where risk isolation is a priority.

Benefits of Asset Transactions

• Greater flexibility in selecting assets.
• Ability to exclude unwanted liabilities.
• More efficient restructuring opportunities.
• Useful in distressed M&A scenarios.

Important Italian Law Considerations

Investors should note that asset transfers involving a business unit (azienda) frequently trigger:

• automatic transfer of employees;
• information and consultation obligations;
• continuity of employment rights.

In addition, strategic assets may still fall within the scope of Golden Power regulations.

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Cross-Border Mergers and Joint Ventures in Italy

Using Cross-Border Mergers for Post-Acquisition Integration

Cross-border mergers are frequently used after closing to:

• simplify group structures;
• centralise operations;
• relocate strategic functions;
• achieve operational efficiencies.

They can be particularly effective where the investor already maintains European subsidiaries.

Joint Ventures as a Market Entry Strategy

Joint ventures remain a popular mechanism for entering highly regulated sectors such as:

• Energy;
• Telecommunications;
• Transport;
• Infrastructure;
• Defence-related industries.

They allow investors to share risk while leveraging local expertise and regulatory knowledge.

Considering a strategic partnership in Italy? A properly structured joint venture can substantially reduce regulatory and execution risks.

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What Is the Best Acquisition Vehicle for Investing in Italy?

Should You Use an Italian BidCo or a Foreign Holding Company?

Selecting the right acquisition vehicle is often one of the most important structuring decisions.

Italian BidCo Structure

Many investors establish an Italian acquisition vehicle because it offers:

• familiarity for local counterparties;
• easier access to Italian financing;
• streamlined security arrangements;
• corporate governance flexibility.

EU Holding Company Structure

An EU holding company may provide:

• access to EU tax directives;
• greater flexibility for future reorganisations;
• treaty benefits;
• efficient dividend and capital gains planning.

Non-EU Holding Structures

Where the ultimate investor is located outside the EU, additional scrutiny may arise under:

• Italian Golden Power legislation;
• EU FDI screening mechanisms;
• sector-specific regulations.

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How Should Acquisition Financing Be Structured?

Inbound acquisitions are typically financed through a combination of:

• equity contributions;
• shareholder loans;
• acquisition financing;
• syndicated debt facilities.

Key issues include:

Financial Assistance Restrictions

Italian corporate law imposes limitations on:

• upstream guarantees;
• cross-stream guarantees;
• security packages granted by target companies.

Transfer Pricing and Tax Compliance

Intra-group financing must satisfy:

• arm’s-length principles;
• transfer pricing requirements;
• DAC6 reporting obligations where applicable.

Before implementing acquisition financing, investors should assess both corporate-law and tax-law constraints to avoid restructuring costs after signing.

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Italian Golden Power: The Most Important Regulatory Issue for Foreign Investors?

What Is the Italian Golden Power Regime?

The Italian Golden Power framework grants the Government special intervention powers over transactions involving strategic sectors and assets.

Today, Golden Power is one of the most significant regulatory considerations in Italian inbound M&A.

Strategic sectors include, among others:

• Energy;
• Transport;
• Communications;
• Critical technologies;
• Certain infrastructure assets;
• Sensitive intellectual property.

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When Is a Golden Power Filing Required?

Notification obligations may arise in relation to:

• acquisitions of control;
• acquisitions of significant shareholdings;
• transfers of strategic assets;
• specific corporate resolutions;
• certain intra-group transactions.

Recent reforms have further expanded the scope of review, particularly where non-EU entities are involved.

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Can Golden Power Affect Deal Timing?

Absolutely.

Golden Power analysis should be conducted at the earliest stages of a transaction because:

• filing obligations may affect signing and closing mechanics;
• clearance may be required before completion;
• conditions may be imposed;
• transactions may be prohibited in exceptional circumstances.

Using the Prenotification Procedure

The prenotification mechanism introduced by Italian regulations allows investors to obtain preliminary guidance regarding:

• applicability of Golden Power;
• filing obligations;
• transaction risk profile.

This can significantly improve deal certainty.

If your transaction involves critical infrastructure, technology or sensitive assets, a preliminary Golden Power assessment should be conducted before signing any binding documentation.

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Competition Law and Sector-Specific Approvals

In addition to FDI screening, investors should evaluate:

EU Merger Control

Transactions meeting EU turnover thresholds may require notification to the European Commission.

Italian Merger Control

Where EU thresholds are not met, notification to the Italian Competition Authority may still be necessary.

Sector-Specific Regulatory Approvals

Additional authorisations may apply in sectors such as:

• Banking;
• Insurance;
• Energy;
• Telecommunications;
• Transport.

These approvals often run in parallel with Golden Power reviews.

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Tax Structuring for Cross-Border Acquisitions in Italy

Key Tax Considerations

Tax structuring influences:

• acquisition vehicle selection;
• financing arrangements;
• dividend repatriation;
• post-closing reorganisations;
• exit strategies.

Investors should carefully assess:

• treaty benefits;
• EU directives;
• CFC implications;
• withholding taxes;
• step-up opportunities.

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How Does DAC6 Affect M&A Transactions?

The DAC6 regime requires reporting of certain cross-border arrangements presenting specific hallmarks.

Potentially reportable structures may include:

• hybrid arrangements;
• artificial losses;
• aggressive financing structures;
• opaque ownership arrangements;
• schemes designed to avoid reporting obligations.

For international groups, DAC6 analysis should form part of transaction planning from the outset.

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Employment Law Issues in Italian Asset Acquisitions

Are Employees Automatically Transferred?

In many asset transactions, yes.

Where the transaction qualifies as a transfer of a business or organised business unit:

• employees transfer automatically;
• employment rights are preserved;
• consultation obligations may arise;
• dismissals connected solely to the transfer are restricted.

This is one of the most significant differences between share deals and asset deals under Italian law.

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Cross-Border Asset Transfers: Operational and Compliance Considerations

Investors frequently focus on corporate and regulatory approvals while overlooking operational compliance.

Cross-border transfers may involve:

• VAT procedures;
• registration requirements;
• customs considerations;
• sector-specific formalities.

These aspects should be incorporated into transaction planning and post-closing integration strategies.

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Checklist for Structuring a Cross-Border Acquisition in Italy

Before launching an acquisition, investors should:

✓ Select the appropriate deal structure.

✓ Assess Golden Power applicability.

✓ Review merger control thresholds.

✓ Determine the optimal acquisition vehicle.

✓ Structure financing in compliance with Italian corporate law.

✓ Conduct tax and DAC6 analysis.

✓ Review employment law implications.

✓ Map sector-specific approvals.

✓ Prepare post-closing integration plans.

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Why Early Transaction Structuring Matters

Cross-border acquisitions in Italy are rarely determined solely by commercial negotiations. Regulatory approvals, Golden Power filings, tax considerations and employment law constraints can materially influence deal certainty, timing and value creation.

Investors that address these issues early are generally better positioned to:

• accelerate execution;
• reduce regulatory risk;
• optimise tax efficiency;
• improve integration outcomes;
• avoid costly restructuring after signing.

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Frequently Asked Questions About Acquiring an Italian Company

Does every foreign acquisition require Golden Power approval?

No. However, transactions involving strategic sectors, critical infrastructure, sensitive technologies or protected assets may trigger mandatory notification requirements.

Is an asset deal safer than a share deal?

Not necessarily. Asset deals can reduce legacy liability exposure, but they often create employment, licensing and operational challenges that do not arise in share acquisitions.

Can a non-EU investor acquire an Italian company?

Yes. However, non-EU investors may face enhanced scrutiny under Italian and EU foreign investment screening regimes.

Can an EU holding company avoid Golden Power review?

Generally no. The authorities will often assess the ultimate ownership structure and the nature of the assets involved.

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Conclusion: How to Successfully Structure a Cross-Border Acquisition in Italy

A successful acquisition in Italy requires the integration of corporate, regulatory, tax and employment law considerations from the earliest stages of the transaction.

Whether the transaction involves a share acquisition, asset deal, joint venture or cross-border merger, investors should conduct a comprehensive assessment of:

• Golden Power and FDI screening requirements;
• merger control risks;
• financing constraints;
• tax and DAC6 implications;
• employee transfer obligations;
• sector-specific regulatory approvals.

By aligning transaction structure, regulatory strategy and commercial objectives before signing, investors can significantly improve deal certainty and maximise value creation.

Speak with an Italian Cross-Border M&A Lawyer

If you are planning to acquire an Italian company, establish a joint venture, invest in strategic sectors or assess Golden Power exposure, our team advises international investors, multinational groups and private equity sponsors on all aspects of inbound transactions into Italy.

Contact us for a preliminary assessment of your transaction structure, Golden Power obligations, regulatory approvals and tax considerations before launching your acquisition process.

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