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Italy COVID-19 Legislative measures – The Government approves the Decree-Law s.c. ‘Simplification’

The Government approved the so-called Simplification Decree (Decree-Law n.76/2020), an annual piece of legislation aimed at cutting red tape, with special regard for public procurement, construction and infrastructure, administrative authorisation processes, digital public services, and the green economy. In short, the purpose of the Simplification Decree is to streamline and digitalise several bureaucratic procedures across a wide variety of domains to facilitate economic activity.

At a political level, it is worth pointing out that the Simplification Decree, like many other measures of the incumbent Government, was the result of drawn-out negotiations between majority parties, which for several weeks struggled to strike a balance between the need to rationalise and modernise the public administration and the need to avoid creating loopholes for violations under the resulting simplified legal framework.

A summary of the main provisions follows:

Measures to speed up infrastructure projects (Art. 9)

• By 31 December 2020, the Prime Minister shall identify infrastructure projects with a high degree of complexity and appoint special commissioners to see through their implementation.
• Special commissioners may operate as contracting authorities and are not subject to the existing national rules on public procurement, without prejudice to compliance with general principles of cost-effectiveness, effectiveness, timeliness, correctness, free competition, non-discrimination, transparency, publicity, environmental sustainability, energy efficiency, as well as anti-mafia laws, conflict of interest rules, and EU public procurement Directives
• These provisions are meant to pave the way for the implementation of the Government’s “Fast Italy” plan, which was attached to the recently approved National Reform Programme. “Fast Italy” identifies over 100 infrastructure projects of all kinds (roads, highways, ports, airports, railways, etc.) where the Government plans to invest a total of €196.7 billion in the short term, with the support of Next Generation EU, the European Commission’s Recovery Plan. In the national reform programme, 40 of these infrastructure projects were designated as high-priority.

Measures to simplify electronic communication networks and services (Art. 3)

• Infrastructure works (including excavation, installation, and maintenance) to implement high-speed optic-fibre electronic communication networks capable of providing ultrabroadband access shall be subject to simplified authorisation procedures. In particular, among other things:
• Providers of electronic communication networks and services may submit a single request to the relevant local administration to initiate infrastructure works, instead of one request for every separate aspect of the project.
• Public authorities shall take a decision on the requests to carry out infrastructure works on public land submitted by fixed-network operators within 8 days of the receipt of the requests.
• Preliminary decisions for broadband infrastructure works within the framework of conferences of services (i.e. the consultation processes where all relevant authorities express their opinions on a given administrative authorisation process) were repealed.

Measures to promote capital increases (Art. 44)

• Until 30 April 2021, provided that at least half of the share capital is represented, the 2/3 enhanced majority of the share capital represented in extraordinary shareholders’ meetings of listed companies shall not apply to decisions on:
  • share capital increases by means of new contributions;
  • the introduction in the articles of association of the provision allowing the exclusion of the option right for up to 10% of the existing share capital, provided that the shares’ subscription price is equal to their market value;
  • empowering managers to increase share capital.

Therefore, all of the abovementioned decisions shall be taken by a simple majority vote, even if the articles of association foresee an enhanced majority.

• Until 30 April 2021, listed companies may approve share capital increases by means of new contributions excluding the option right for up to 20% of the existing share capital, even if this is not foreseen by the articles of association.The deadline to call a shareholders’ meeting to decide on this issue shall be shortened by half.
• Those who exercise their option right have a right of pre-emption on unsold shared, provided that they submit a request for this purpose. Listed companies may foresee that the right of pre-emption on unsold shares must be exercised at the same time as the option right.

Measures on Alitalia (Art. 45)

• The deadline for Alitalia to pay back its €400 million bridging loan (granted pursuant to Decree-Law 137/2019 introducing measures to ensure Alitalia’s business continuity) was extended until 31 December 2020.
• Significantly, Decree-Law 137/2019 did not set any deadline for Alitalia to pay back its loan, which was instead added by Parliament during the ratification process of the Decree-Law to ensure greater accountability. Now the Government effectively overruled the amendment passed by Parliament, which nonetheless is unlikely to further change this provision in light of Alitalia’s predicament.

Measures on road and highway infrastructure safety (Art. 49)

• Within 30 days of the entry into force of the Simplification Decree, the Minister of Infrastructures and Transport shall introduce appropriate guidelines to harmonise risk classification and management as well as safety assessment and monitoring of tunnels, viaducts, and similar infrastructure on roads and highways managed by the National Road Authority (ANAS) or by private highway concessionaires.
• In addition, the Minister of Infrastructures and Transport shall identify the criteria to develop and manage a dynamic monitoring system on a trial basis for at least 1 year for the abovementioned infrastructures in critical condition. To this end, ANAS and private highway concessionaires shall provide the Ministry of Infrastructures and Transport with all necessary data.
• At the end of the trial period, the Minister of Infrastructures and Transport shall update the abovementioned guidelines and set the criteria for the regular submission by ANAS and highway concessionaires of all necessary data to the Ministry of Infrastructures and Transport to ensure the proper functioning of the dynamic monitoring system.
• These provisions are another step by the Government towards the stricter regulation of highway concessionaires with a view to ensuring infrastructure safety following the collapse of the ASPI-managed Morandi bridge in Genoa in 2018.

In terms of process, the Simplification Decree was submitted to Parliament for ratification. The examination of the Decree-Law began in the Senate Constitutional Affairs Committee and in the Senate Public Works Committee. Parliament has until 16 September to ratify it.

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