I poteri speciali dello Stato nei settori di pubblica utilità

The work examines the new legal framework of the «golden powers», namely the special powers endowed to the (Italian) State as introduced by legislative decree no. 21 of the 15th of March 2012 as converted into law no. 56 of the 11th of May 2012. By virtue of the new law, the Italian government is now entitled to exercise such special powers upon the occurrence of some triggering events and towards entities operating in some strategic sectors (national defense and security; energy; transports and communication). After having outlined the main features of the new legal framework vís a vís with the previous regime (d.l. 332/1994), the authors evaluate the nature of these “special” powers that seems to be grounded on general Constitutional principles (art. 41, para 2 and 3 Cost.) and, at the same time, unconnected with general privatistic rules and principles of company law, with the only exception of some occasional interferences. The analysis takes also in consideration legal solutions adopted by other jurisdictions in entitling Member States to exercise special powers: aim of this part of the work is to assess if there is any relationship among these rules and company law. The reflections are in this case carried on in light of past and recent European Court of Justice case law. Finally, the work examines the two main special State’s powers introduced by new Italian law, namely the veto right towards the adoption of some resolutions by the board of directors or the shareholders’ meeting and the right to oppose to qualified acquisition of stakes companies considered strategic by the new rules.