On 16 July 2019, Telecom Italia filed an appeal before the Council of State for the annulment of the Lazio Regional Administrative Court (TAR) sentence no. 0499/2019 and the Consob Communication. On 17 July 2019, Vivendi also filed an appeal before the Council of State for the annulment of the sentence of the Lazio Regional Administrative Court (TAR) no. 0499/2019 and the Consob Communication. With judgment no. 07972/2020 of 15 October 2020 and 7 December 2020 published on 14 December 2020, the Council of State, accepting the appeal of Telecom Italia, annulled the provision. Subsequently, the Court of Cassation, in relation to the appeal brought by Consob against the Sentence of the Council of State, with order of 11 October 2022 declared the appeal inadmissible.

Decision n. 0106341 of September 13th, 2017

Sent to: Telecom Italia S.p.A.; Board of Statutory Auditors of Telecom Italia S.p.A; VIVENDI S.A.

Re: Telecom Italia S.p.A. – legal qualification of the ownership relationship of Vivendi S.A. in Telecom Italia S.p.A. according to the law provisions concerning transactions with related parties, as well as to article 2359 of the Italian civil code and article 93 of the Legislative Decree no. 58 of 24 February 1998 ("the Consolidated Law on Finance")

1. Reference is made to the correspondence exchanged with Telecom Italia S.p.A. (“TIM” or “the Company”) and with the Board of Statutory Auditors, referring to the legal qualification of the shareholder Vivendi S.A. (“Vivendi”), as controlling entity of TIM, for the purpose of the law provisions concerning the transactions with related parties as well as to the legal opinions rendered on this matter to TIM and the Board of Statutory Auditors.

As to the law provisions concerning the transactions with related parties, by communication dated January 20^th, 2017, the Board of Statutory Auditors informed Consob to have reached the conclusion that Vivendi is a related party of Telecom, it being the controlling entity according to the definition contained in the Consob Regulation governing this matter. On the contrary, the legal opinions rendered to the Company lead to the conclusion that Vivendi does not control TIM according to the definition contained in the abovementioned Regulation.

In particular, reference is made to the note sent by Consob on April 20^th, 2017, regarding the issue of the legal qualification of the shareholder Vivendi as controlling entity of TIM, for the purposes of the law provisions concerning the transactions with related parties, specifically referring to the type of control indicated in lett. d) of the definition of “control” contained in the “Annex 1” of the Consob Regulation adopted by resolution 17221/2010 (“Consob Regulation on Transactions with Related Parties”). By such note, Consob outlined, inter alia, that “the ownership structure and the governance of Telecom as well as the facts evidenced by the Board of Statutory Auditors, time after time, assume a specific importance as indexes of an increasing influence exercised by the shareholder Vivendi on the management of the Telecom group”, as well as that such facts implied the necessity to promptly conduct an evaluation pursuant to art. 4, paragraph 2, of the Consob Regulation on Transactions with Related Parties. In the end, in the abovementioned note, it was specified that: “should Vivendi obtain «the power to cast the majority of the voting rights at meetings» of such board of directors, as a consequence of the shareholders’ meeting of Telecom - called to be held on May 4^th, 2017 to resolve upon the appointment of the Board of Directors through the system based on the lists of candidates - the Company shall mandatorily conduct a new evaluation of the position of the same Vivendi”.

In the shareholders’ meeting of May 4^th, 2017, the new Board of Directors (“BoD”) of the Company was appointed and the directors were selected from the list submitted by Vivendi.

Reference is also made to the decision, adopted by the majority of the BoD of TIM on June 1^st, 2017, excluding that “even after the shareholders’ meeting of May 4^th, 2017, Vivendi has «the power to cast the majority of the voting rights at meetings» of the Board of Directors […] and that, accordingly, the conditions, based on which the nature of the relationship between Vivendi and TIM would be defined as control, according to the specific law provisions, are met”. On this issue: (i) the Company had received some additional legal opinions concerning the legal qualification of Vivendi as controlling entity over TIM, excluding that such control exists for the purposes of the law provisions concerning the transactions with related parties as well as of art.  2359 of the Italian civil code (“c.c.”) and art. 93 of the Consolidated Law on Finance; (ii) on June 7^th, 2017, the Board of Statutory Auditors sent to Consob a communication, whereby it outlined that – as a consequence of the shareholders’ meeting of May 4^th – the legal qualification of vivendi as controlling entity is, at that point, undisputable for the purposes of the law provisions concerning transactions with related parties.

Reference is finally made to the press release of June 1^st, 2017, whereby the Company acknowledged, inter alia, that the Board of Directors had “reviewed and voluntarily extended, following the favorable opinion of all the independent Directors, the scope of application of the current Procedure [for transactions with related parties “Procedure RPT”], replacing the clause by which on 3^rd May, 2017 it proceeded with a first extension and deciding to fully equate the reference shareholder Vivendi to a parent company for the purposes of identifying the scope of the related parties of TIM”.

2. Reference is made to the press releases spread by TIM:

• on July 27^th, 2017, whereby “The Board of Directors of TIM acknowledged the beginning of the direction and coordination activity over TIM by Vivendi SA.”;

• on August 4^th, 2017, whereby it is indicated, inter alia, that the BoD, “acknowledged the start of the direction and coordination activity but did not address the issue of whether control by Vivendi over TIM exists under the terms of article 2359 of the Italian Civil Code”.

[Omissis]

Reference is also made to the press release spread, upon Consob’s request, on  August 7^th, 2017, stating that Vivendi “considers that it does not exercise any de facto control over Telecom Italia under Article 93 of the Consolidated Law on Finance and Article 2359 of the Italian Civil Code, given that its participation in Telecom Italia is not sufficient enough to allow it to exercise, on a stable basis, a dominant influence at Telecom Italia shareholders’ meetings.”.

In particular, Vivendi has underlined that:

• a controlling position of Vivendi in the ordinary shareholders’ meetings of TIM, starting from June 22^th, 2015, may not be envisaged;

• the direction and coordination activity “shall not be construed, based on applicable Italian law principles, as evidence of a de facto control position within the meaning of Article 2359 of the Italian Civil Code”, distinguishing the different scopes of the two set of laws, which apply, respectively, on a “management” level and on a different level, dealing with the shareholding exercisable within the shareholders’ meetings.

Reference is also made, to the legal opinion rendered to Vivendi on August 13^rd, 2017, which excluded the existence of the “control” pursuant to art. 2359 c.c. and art. 93 of the Consolidated Law on Finance.

Furthermore, reference is made to the notes dated 7^th and 22^nd August, 2017, transmitted to Consob by the Company on August 31^st, 2017, upon request of such latter pursuant to art. 115 of the Consolidated Law on Finance, by note dated August 30^th, 2017.

By such notes, TIM has replied to the notification addressed by the Presidency of the Council of Ministers concerning the start of the proceeding vis-à-vis Vivendi and TIM aimed at ascertaining the existence of the notification obligations set forth by the law provisions governing the so-called “golden power” and, in particular, pursuant to articles 1 and  2 of the Law Decree dated March 15^th, 2012, no. 21. [Omissis]

In addition, by such notes of August 7^th and 22^nd, 2017, TIM has submitted to the Presidency of the Council of Ministers, some legal opinions dated August 6^th, 2017 and August 10^th, 2017, whereby it is acknowledged that, also as a consequence of the shareholders’ meeting of May 4^th, 2017, Vivendi does not control TIM pursuant to articles 2359 c.c. and 93 of the Consolidated Law on Finance and that the direction and coordination activity exercised by Vivendi would not imply a change in the ownership structure and, in particular, a change in the holding of a controlling position.

Reference is made to the note sent to Consob on September 5^th, 2017, by the Board of Statutory Auditors of TIM, whereby the same Board informed that it had completed the investigation aimed at verifying the existence of the controlling position of Vivendi in TIM for the purpose of articles 93 of the Consolidated Law on Finance and  2359 c.c. as well as of IFRS 10. In the abovementioned note, it is outlined that “Upon completion of the analyses conducted and of an in-depth and comprehensive examination of the complex issue, the Board of Statutory Auditors, unanimously, deems that the conditions to qualify Vivendi as controlling entity over Telecom Italia, pursuant to art. 93, paragraph 1, of the Consolidated Law on Finance and art. 2359, paragraph 1, no. 2, of the Italian civil code, as well as pursuant to IFRS n. 10, are currently met”.

In particular, as mentioned in the note, “it has been evaluated that Vivendi may be qualified as having a de facto control over the Company, pursuant to art. 2359, paragraph 1, no. 2, of the Italian civil code, given that it holds a «stake» suitable to «direct the will of the ordinary shareholders’ meeting» of Telecom Italia”.

Furthermore, the assessments of the Board of Statutory Auditors “are a consequence of, and are confirmed by, the concurrence of different circumstances noticed […], both as a matter of fact and under a legal viewpoint, which are considered […] as suitable to envisage a type of control so called “de facto control” according to the Italian civil code”, referring to the period before the shareholders’ meeting of May 4^th, 2017, to the outcomes of the same meeting and to the current situation.

Reference is finally made to the legal opinion rendered to the Company on September 12^th, 2017.

* * *

This Commission has reached the conclusion that – as a consequence of the shareholders’ meeting of May 4^th, 2017, whereby Vivendi has appointed the majority of the members of the BoD of TIM – the same Vivendi exerts the control over TIM pursuant to articles 2359, paragraph 1, no. 2, c.c. and 93 of the Consolidated Law on Finance, as well as according to the Consob Regulation on Transactions with Related Parties. Such conclusions have been reached, according to the considerations illustrated herein below, taking into account the issues outlined in the correspondence exchanged among TIM, the Board of Statutory Auditors, Vivendi and this Commission concerning the events which are the subject matter of this note, as well as based on the analysis of the events concerning TIM, which have occurred as of the date hereof.

1. LEGAL QUALIFICATION OF VIVENDI AS DE FACTO CONTROLLING ENTITY PURSUANT TO ART. 2359 OF THE ITALIAN CIVIL CODE AND ART. 93 OF THE CONSOLIDATED LAW ON FINANCE

1.1. The Consob Decision no. DEM/3074183 of November 13^th 2003, concerning the “Legal Qualification of the ownership relationships between Pirelli S.p.A. and Olimpia S.p.A. as well as between Olimpia S.p.A. and Olivetti S.p.A.”

1.1.1. As a preliminary step, it is necessary to clarify the content of the Consob Decision no. DEM/3074183 of November 13^th 2003, concerning the control (herein after, the “Decision” or “Consob Decision”), referred to the ownership relationships, existing at that time, among Pirelli S.p.A., Olimpia S.p.A. and Olivetti S.p.A. (now, TIM).

Notwithstanding this Decision is far back in time and preceding the entry into force of the system of voting thorough lists of candidates (slate voting system) for the appointment of the board of directors in the Consolidated Law on Finance (set forth by the law no. 262/2005, so called Law on the Protection of Savings), the same decision still constitutes the current position of Consob concerning the criteria to be used in order to identify the “de facto control” and the “legal control” (controllo di diritto, i.e. the ownership of the majority of the voting share capital), pursuant to article 2359 c.c. and art. 93 of the Consolidated Law on Finance, and that is taken into account by the scholars and the market with respect to the listed companies.

After having taken into account the indexes contained in such Decision, it is necessary to read it again in light of the entry into force of the slate voting system for the appointment of the board of directors applicable to listed companies, starting from the shareholders’ meetings convened after July 1^st, 2007.

1.1.2. As indicated in the same Decision, the definition of “control”, based on which Consob assesses the ownership relationships between the listed companies and the relevant shareholders, is set forth by art.93 of the Consolidated Law on Finance, which contains, as a general rule, the definition of “control” applicable to the Part IV of the Consolidated Law on Finance, concerning the “Regulation of Issuers”[1]. According to such law provision: “in addition to the companies indicated in paragraphs 1 and 2 of the first subsection of Article 2359 of the Civil Code[2], the following shall also be considered subsidiaries:

a) Italian and foreign companies over which a person has the right, by virtue of a contract or a clause in the instrument of incorporation, to exercise a dominant influence, where the applicable law permits such contracts or clauses,

b) Italian and foreign companies where a shareholder controls alone, on the basis of agreements with other shareholders, enough votes to exercise a dominant influence in the ordinary shareholders’ meeting.”.

Such law provision constitutes one of the several definitions of “control” contained in special laws having a specific field of application, which, time after time, have been established alongside the civil code definition pursuant to article 2359 c.c.. Such law provisions occasionally indicate specific requirements in order to identify the controlling position, unrelated to art. 2359 c.c., but in the majority of cases, such law provisions establish certain presumptions aimed at simplifying the assessment of the notion of “control” already defined by art. 2359 c.c..

More specifically, the majority of such definitions, among which the definition contained in the above mentioned art. 93 of the Consolidated Law on Finance[3], are construed around the notion of dominant influence set forth by art. 2359 c.c..

Therefore, the “dominant influence” constitutes the essence of control, the common basis of all the types of controls referring to the same “dominant influence”.

In particular, art. 93 of the Consolidated Law on Finance refers to nn. 1 and 2, paragraph 1, of art. 2359 c.c, excluding n. 3, which establish the so-called “external de-facto control”. Therefore, what matters for the purposes of the above mentioned law provisions, is only the so-called “internal” or “based on the shareholding”, whether “legal control” (no. 1, art. 2359 c.c.) or “de-facto control” (no. 2, art. 2359 c.c.). The additional provisions contained in the same art. 93 of the Consolidated Law on Finance would be presumptions of dominant influence under item n. 2, paragraph 1, of art. 2359 c.c.. In particular, according to the prevailing scholars’ opinion, the notion of solely control based on the shareholders’ agreements would be already included in art. 2359 c.c., as well as the provision concerning the “control” based on “agreements or bylaws clauses, in the event that the applicable laws allow such agreements or clauses”.

As outlined in the Consob Decision, the common requirement applicable to both the types of control (the legal control and the de-facto control) is the “availability” of voting rights sufficient to have the majority of voting rights in the ordinary shareholders’ meeting and, therefore, “the possibility to designate the majority of directors – or even all the directors – and the possibility to direct the management of the company through the approval of the annual financial statement. In other words, the identification of the “control” depends on the capacity of the stake held by the shareholder to direct the will of the ordinary shareholders’ meeting. While, the law does not deem necessary, in order to identify the “control”, the dominant influence in the extraordinary shareholders’ meetings.”.

1.1.3. As evidenced in the Decision, the law provision under art. 2359 c.c., compared to the original version, was amended by the Legislative Decree n. 127/91, implementing the Directives no. 78/660/EEC and 83/349/EEC concerning corporate issues, related to annual and consolidated accounts. In particular, art. 2359 c.c., in the former version, made reference to the control exercised by virtue of “shares or quotas held” by the shareholder; the current version, on the contrary, refers to the “availability” of voting rights in the ordinary shareholders’ meeting (“The following companies are considered controlled companies:

1) the companies in which another company has the availability of the majority of the voting rights exercisable in the ordinary shareholders' meeting;

2) the companies in which another company has the availability of voting rights sufficient to exercise a dominant influence in the ordinary shareholders' meeting”).

Therefore, in order to identify the controlling entity, a specific formal situation (e.g., the ownership of more than 50% of the ordinary share capital) is not required, but what matters is the effective power position within the company, based on the number of voting rights that, as a matter of fact, the shareholder may use, in any case, to obtain the dominant influence over the investee company through the appointment of the majority of the members of the Board of Directors.

As outlined in the Decision, “after the multiplying of express references to the shareholders’ agreements, intended as instruments to acquire the control, and after the amendments set forth by the mentioned Legislative Decree no. 127/91 to the constitutive elements of the “internal control”, whether it is a legal control or a the de-facto control, ex art. 2359 c.c., the prevailing scholars’ opinions has stated that the control must not be considered any longer as a static or formal situation, depending on the property of the shares, but a “control” related to the effective management of the company”.

Accordingly, the dominant influence in the ordinary shareholders’ meeting may be considered to be intended - rather than having an end in itself - as a condition to exercise the dominant influence on the ordinary management of the company through the possibility to govern the decision of the BoD, which is the corporate entity exclusively in charge of the management.

This position is strengthen by the content of the mentioned Decision concerning the assessment of the “legal control” under art. 2359, paragraph 1, no. 1, c.c. (“The following companies are considered controlled companies: 1) the companies in which another company has the availability of the majority of the voting rights exercisable in the ordinary shareholders' meeting”).

In particular, the above mentioned Decision outlines that: “some scholars have affirmed that in those cases in which an entity has the availability of «the majority of the voting rights exercisable in the ordinary shareholders' meeting» of a company, meaning that it has the availability of more than one half of the shares with voting rights exercisable in the ordinary shareholders’ meetings, the possibility to exert the dominant influence is in itself (in re ipsa), since such entity is able, inter alia, to appoint the directors of the investee company. Therefore, in the event an entity holds 50% plus one share of a company, such latter, without any further assessment, must be considered as a controlling company: the “control” is presumed iuris et de iure (non-rebuttable presumption)” .

In the same Decision it is also considered that the Commission does not agree with such part of the scholars’ opinions and is convinced that - also taking into account the positions according to which, following the abovementioned amendments of art. 2359 c.c., the “control” must not be considered any longer as a formal position, depending on the ownership of the shares, “but a control depending on the effective management of the company” – the notion of “control” based on the availability of the majority of voting rights exercisable in the ordinary shareholders’ meeting must be considered as a rebuttable presumption (iuris tantum presumption).

In particular, “in the same way as the shareholders’ agreements may be taken into account in order to qualify as controlling entity, an entity which, otherwise, would not have such qualification, it would be also possible that in certain cases certain clauses of the shareholders’ agreements, or of the bylaws, or even specific law provisions, may be taken into account in order to exclude the “control” of a shareholder that holds «the majority of the voting rights exercisable in the ordinary shareholders' meeting»”[4]. Obviously, then, in the event of a shareholders’ agreement that weakens the entity holding the majority of the voting rights exercisable in the ordinary shareholders’ meeting, it will be necessary to ascertain whether, in concrete, the clauses of such shareholders’ agreements are suitable to impede to such shareholder to exert an influence, having a significant impact, on the management of the company. In particular, in the event, an entity that holds the absolute majority of the voting rights designate the majority of the directors (which is unanimously taken into account in order to ascertain the existence of a “control”), in order to exclude the control, it is necessary to assess that, due to the clauses of the agreements or the bylaws, such majority of directors is impeded to assume the decision concerning the management of the company without the consent of the directors which have been designated by the minority shareholders.

1.1.4. With specific reference to the “de facto control” under art. 2359, paragraph 1, no. 2, c.c. (“The following companies are considered controlled companies: 1) the companies in which another company has the availability of the majority of the voting rights exercisable in the ordinary shareholders' meeting) by an entity which has not the availability of the majority of voting rights in the ordinary shareholders’ meeting in the Decision, it is clarified, briefly, as follows

The “de facto control” exists, as well known “in the event that a stake, which considered as itself is a minority stake, in that specific situation, allows, in any case, to direct the decision of the ordinary shareholders’ meeting due to the distribution of the shareholding and the non-attendance of the other shareholders. The stake suitable to assure the dominant influence is variable, since it depends on the concrete situation of the company. In particular, the need of a larger or smaller amount of shares to exert the “control” of the company will depend on the distribution of the shareholding and on the usual level of non-attendance of the shareholders holding smaller stakes”.

The shareholders’ meetings which are more significant for the life of the company such as the shareholders’ meetings in which the directors are appointed and that, therefore, influence the management of the company for the next three years or the shareholders’ meetings resolving upon the approval of the annual financial statement in which an appraisal on the management of the company is expressed - shall be taken into account.

“Furthermore, in order to ascertain the existence of the “control” it must be assessed that the control is not occasional, due to a contingent situation or to a casual domination of the shareholders’ meeting in which, for instance, one or more major shareholders, usually attending the meeting could not attend for unforeseeable reasons. It must be a legal situation relatively stable. This relative stability will necessarily be assessed through an analysis of the development of the shareholders’ meetings of the investee company for a period of time reasonably significant. This period of time, however, must not be necessarily subsequent to the date on which the supposed controlling entity has acquired the shareholding, while even the shareholders’ meetings preceding the transfer of such shareholding may be taken into account. In particular, an examination of the past shareholders meetings must be conducted in order to assess the percentage of voting rights which was required, on average, in order to reach the voting majority. Obviously such analysis based on the past, will be significant only in the cases in which, apart from the acquisition of the major shareholding under examination for the purpose of the possible legal qualification as controlling position, other material changes in the ownership structure have not occurred. More precisely, with respect to the listed companies, an assessment must be conducted to verify whether the major shareholders holding stakes exceeding the threshold of 2% have not changed their holding and therefore if the so-called floating stock is almost the same. In this way, it will be possible to foresee, with a reasonable reliability, that such shareholding will be able to grant the control to the relevant shareholders”.

Finally, with respect to the stability of the “control”, the Decision outlines that “it does not agree with the position that in order to identify the existence of the “de-facto control”, it will be necessary to wait that such concrete situation is effective for a period of time of two or three financial years”.

With respect to the relationship between Olimpia and  Olivetti, the stability of the “control” over Olivetti had been ascertained based on the examination of the shareholders’ meetings preceding the acquisition of the shareholding by Olimpia and, in addition, it was confirmed, in concrete, by the effective appointment of the members of the Board of Directors of Olivetti, at least until the transaction for the restructuring of Olivetti/Telecom Italia was completed.[5]

Furthermore, with respect to such issue concerning the relative stability of the “de-facto control” the Decision has also pointed out that “the possibility that, in the future shareholders’ meetings, the position of the shareholder which exert the “de-facto control” may be reverted to a minority shareholders’ position by a coalition of other shareholders, constitutes a possibility which is always implicit in the “de-facto control” and that distinguish such control, which is always contestable, from the «legal control»”.

“In other words, the competition and the possibility to change the situation constitute an essential requirement of the «de-facto control», which, even though is stable, is in any case a minority control and therefore may be reverted by new majorities which may occur in the shareholders’ meeting. Should the «de-facto control» be excluded, due to the only circumstance - which may always happens - that the controlling entity may be reverted in a minority position in the future, there would be an abrogation of such type of control, as a matter of fact”.

1.2. Considerations subsequent to the entry into force of the law provisions concerning the voting system thorough lists of candidates (“voto di lista”) for the appointment of the board of directors of the listed companies

As mentioned, the considerations contained in the Consob Decision must be necessarily supplemented taking into account the entry into force of the voting system for the appointment of the board of directors[6] in the listed companies, as set forth in the Consolidated Law on Finance by the so called Law on the Protection of Savings in the 2005 and applicable starting from the shareholders’ meetings called after July, 1^st, 2007[7].

In particular, based on such law provisions, the availability of the absolute majority of the voting rights attending the shareholders’ meeting is not necessary, any longer, for appointing the board of directors, as set forth for the ordinary shareholders’ meetings in art. 2368 c.c., paragraph 1, c.c. [i.e. the general rules for shareholders meeting],[8] as the majority of the directors will be taken from the list which obtained even one vote more than any other list submitted.

Accordingly, based on the voting system through lists of candidates, apart from at least one seat in the BoD to be reserved to the minority shareholders, the “capability […] to direct the will of the ordinary shareholders’ meeting” called to resolve upon the appointment of the corporate bodies and, as a consequence, the capability to exert the dominant influence on the management of the company through the appointment of the majority of the directors by the entity which holds a stake representing the relative majority of voting rights, is based on circumstances which do not require casting the absolute majority of the voting rights attending the shareholders’ meeting.

Furthermore, under a general viewpoint – without prejudice to any necessary analysis which must be conducted, on a case by case basis, with respect to the concrete situation – it is necessary to take into account the following factual elements which have emerged through the examination of the shareholders’ meetings of the listed companies:

a) in the last years the attendance to the shareholders’ meetings of the listed companies, with specific reference to the companies having a medium or high capitalization, has significantly increased mainly after 2011, which is the first year in which the mechanism, so-called “record date”[9], has been introduced (as implementation of the Directive 2007/36/EC concerning the shareholders’ rights of the listed companies, the so-called Shareholders’ Rights Directive)[10]; in the same way the activism of the minority shareholders has increased by using those rights granted by the Consolidated Law on Finance and the Italian civil code (g., the possibility to submit minority shareholders’ lists, to add items to the agenda of the shareholders’ meetings, to report any chargeable fact to the Board of Statutory Auditors);

b) nevertheless, the “Società di Gestione del Risparmio”, shorty “SGR” [e., management companies according to the EU relevant framework] as well as the other Italian or foreign institutional investors, based on the law provisions or applicable private rules, may not effect investments which are directed to the acquisition of the “control” of the target company; accordingly they do not submit lists aimed at appointing the majority of the directors, but they only submit so-called “short lists”, which are the lists aimed at appointing the minority of the directors. Furthermore, only the submission of a “minority list” is comfortable for such investors with respect to the risk of being considered as “persons acting in concert”, and, as such, to incur in the obligation to launch a mandatory bid. In this respect, art. 44-quater of the Issuers’ Regulation expressly provides for that the submission of lists of candidates for the election of the corporate bodies which include a number of candidates that is less than an half of the members to be elected or which are directed to the appointment of representatives of the minority shareholders shall not be sufficient for the qualification of “persons acting in concert”[11];

c) with respect to the companies having a medium and large capitalization (companies included in the FTSE MIB index and in the MID CAP index) SGR pertaining to the “Associazione italiana del risparmio gestito” (“Italian Investment Management Association”), shortly “Assogestioni”, or other Italian or foreign institutional investors usually participate to the submission of the list drafted by the Committee of the investment management companies of Assogestioni. Such lists, as established in several provisions of the “Protocollo dei compiti e delle funzioni del Comitato Corporate Governance e del Comitato dei Gestori” (“Guidelines of the duties and tasks of the Corporate Governance Committee and the Management Companies Committee”), are lists directed to “the appointment or the replacement of candidates representing the minority shareholders in the corporate bodies of the Italian listed companies”. The members of the Committee of the management companies “submit exclusively minority lists for the appointment of the corporate bodies of the listed companies. Accordingly, the lists for the appointment of the board of directors contain a number of candidate equal to less than half of the members to be elected, unless this is impeded by the clauses of the issuer’s bylaws”;

d) therefore, especially with respect to those companies having a higher capitalization and considerable floating stock exceeding the 50% of the share capital and without significant shareholders, other than the institutional investors, such as TIM, the shareholder which holds a shareholding representing the relative majority has always succeeded in achieving the availability “of sufficient voting rights” to appoint at least the majority of the members of the board of directors, obtaining, as a consequence, the typical result of the exercise of “the dominant influence in the ordinary shareholders’ meeting”;

e) more specifically, in the practice, the investing funds have always submitted lists containing a number of candidates equal to less than half of the members to be elected, which, therefore, could not compete with the major shareholder for the appointment of the majority of the seats of the BoD. In particular, the following cases have occurred: i) in almost all the cases, the list directed to the majority of the seats of the BoD has obtained the majority of the voting rights in the shareholders’ meeting and, therefore, the majority of the directors; ii) in some cases, the “minority list”, containing a number of candidates equal to less than half of the members to be elected, has obtained the majority of the voting rights and has appointed all the candidates indicated therein, but - in order to complete the board - the same candidates of the “majority list”, not appointed within the list mechanism, have been proposed for the approval by the shareholders’ meeting, pursuant to the mentioned art. 2368 c.c.; the representatives of the investors which had submitted the “minority list” left the shareholders’ meeting in order to allow the shareholder which had submitted the “majority list” to appoint the remaining members (and therefore, the majority of the BoD)[12]; iii) some bylaws of the listed companies recently introduced a clause, whereby, should a “short list” obtain the majority of the voting rights, the remaining directors, shall be automatically taken from the list having a number of directors sufficient to complete the board[13].

In conclusion, the voting system through the lists of candidates in a company, whose share capital is mainly constituted by floating stock and held by institutional investors or retail, with a significant distance between the shareholder representing the relative majority and the second major shareholder, if any, may reasonably convince the first shareholder, which has the availability of the stake representing the relative majority, that it will obtain sufficient voting rights in order to appoint the majority of the directors, consequently achieving the same effect resulting typically from the exercise of the dominant influence pursuant to art. 2359, paragraph 1, no. 2), c.c..

1.3. Analysis of the ownership relationship between Vivendi and  TIM following the shareholders’ meeting of TIM held on May 4^th, 2017

In the ordinary shareholders’ meeting held on May 4^th, 2017, the list of Vivendi has received the majority of voting rights, resulting in the appointment of the 2/3 of the directors of the BoD of TIM (10 out of 15). The remaining directors have been taken from the list submitted by the Committee of the Management Companies of the association called Assogestioni on behalf of SGR and institutional investors. Vivendi has promoted the solicitation of voting proxies, through which it has collected voting rights equal to 0,15% of the share capital and it attended the shareholders’ meeting with 23,94% of the share capital, while the share capital with voting rights in attendance was equal to 58,75% of the share capital. The list submitted by Vivendi, which received the majority of voting rights, has been voted by shareholders representing the 29% of the share capital represented in the shareholders’ meeting, while the lists submitted by the investing funds has been voted by the 28,78% of the share capital in attendance.

No other list had been submitted which could compete with the list of Vivendi for the appointment of the majority of the directors; the only alternative list had been submitted by the mentioned Committee of the management companies on behalf of the investing funds and it contained a number of candidates equal to less than half of the members to be elected, given that it was a list directed to appoint the directors representing the minority shareholders’.

In the event the “minority list” gained the majority of votes, the candidates unelected within the list of Vivendi would have been proposed through a voting procedure pursuant to art. 2368 c.c. and the representatives of the investing funds, considering their intention/impossibility to appoint the majority of directors would have not interfered in the election allowing Vivendi to appoint all its candidates.

Based on the analysis of the shareholders’ meetings of TIM starting from July 1, 2007, which is the date in which the voting system through the lists of candidates has entered into force, it may be noticed that in all the shareholders’ meetings resolving upon the appointment of the board of Directors[14]:

• the majority of the directors have always been expressed by the shareholder representing the relative majority which had submitted the so called “majority list of candidates” (it being the list containing a number of candidates equal to all the members of the BoD, or, in any case, a number of candidates equal to the majority of the available seats);

• the number of directors reserved to the minority shareholders according to the bylaws (equal to one fifth and, at a second stage, one third of all the seats) has been taken from the list submitted by a group of institutional investors and by the major shareholder Findim (which held in the course of time up to the maximum percentage equal to 5% of the share capital). More specifically in the shareholders’ meetings held in 2011 and 2014, none of the directors has been taken from the list submitted by Findim and all the seats reserved to the minority shareholders have been covered by candidates taken from the list of the institutional investors;

• the lists of the institutional investors and Findim have always been directed to the appointment of the minority of the directors given that such lists have always contained a number of candidates equal to less than half of the members to be elected.

It may be outlined that the “majority list” (submitted by Telco) succeeded in appointing the majority of the directors also in the only case in which (i.e., the shareholders’ meeting held on April 16^th , 2014) such list was the second ranked. In such a case, in fact, through the voting system by lists, only 6 out of the 13 members of the board of directors have been appointed and, in particular, it was possible to take from the list submitted by the investing funds, which was the first most voted list, the only 3 candidates indicated therein and from the list of the “relative majority shareholder”, Telco, which was the second most voted list, only the first 3 candidates have been taken, which is the amount of directors reserved to the minority shareholders according to the bylaws. The remaining 7 directors necessary to complete the board of directors have been appointed without the slate voting system, through the election by voting each candidate with the simple voting majority of the shareholders’ meeting. In particular, the shareholder Telco proposed the same 7 candidates outstanding in its list which had not been elected and the appointment was approved as a consequence of the fact that the representatives of the investing funds left the meeting.

In light of the considerations expressed, in general, by Consob in the mentioned Decision adopted in 2003, the outcomes of the preceding shareholders’ meetings allow to affirm the stable nature of the result of the appointment of the majority of the directors obtained in the last shareholders meeting by the shareholder Vivendi, also considering that the floating stock of TIM has remained substantially unchanged in the course of the years. In particular, based on the examination of the notification pursuant to art. 120 of the Consolidated Law on Finance it results that the major shareholders (exceeding the threshold of 2% or 3% starting from 2016) have remained substantially unchanged[15]. Such circumstance is also confirmed by the evidences of the attendance to the TIM shareholders’ meetings by the shareholders, the majority of which consist of a certain number of institutional investors[16].

Furthermore, it could be noticed that, at present, the share capital of TIM is composed by one shareholder (Vivendi), holding a stake equal to approximately 23,9%, while the remaining capital is distributed among the public. In particular, there are no other shareholders bound by a shareholders’ agreement and the sole shareholder holding a major holding according to art. 120 of the Consolidated Law on Finance, BlackRock Inc., has a stake equal to 3,10%, significantly smaller than the stake held by Vivendi, and it has not submitted any list, but it has voted for the list submitted by the Committee of the Management Companies of Assogestioni directed to the appointment of the minority of the directors.

From the data of the composition of the shareholding, as of June 30^th, 2017, published on the website of the Company and based on the information resulting from the shareholders’ books  as of June 30^th and by other information available to the same Company, it results that:

• Vivendi holds a stake equal to 23,94%;

• the foreign and Italian institutional investors hold a percentage of the share capital equal to 61,89% (as to 58,13% held by foreign investors and 3,76% held by Italian investors);

• other shareholders, none of which holding a major shareholding, collectively hold a percentage of the share capital equal to 13,09%;

• the Telecom group hold TIM treasury shares equal to 1,08%.

In light of the foregoing, according to the opinion of this Commission, Vivendi, from the beginning, was reasonably sure that it could have the availability of voting rights sufficient to appoint the majority of the directors of TIM and, therefore, that it could exercise the control over the management of the Company. Through the shareholders’ meeting held on May 4^th , Vivendi has acquired such “de-facto control” in a relatively stable manner. In fact, through the appointment of the majority of the directors, Vivendi has achieved for a three-year period the power to determine the decision of the board of directors, which is exclusively in charge of the management of the Company.

Obviously, under an abstract perspective, it would be always possible that such BoD is revoked, as it would be always possible in a company still subject to competition, as the companies de-facto controlled are by definition, but due to the described composition of the shareholding, for the time being, this event may not reasonably happen.

1.4. Declaration of the direction and coordination activity over TIM by Vivendi

1.4.1. Following the appointment of the majority of the directors (2/3) in the mentioned shareholders’ meeting held on May 4^th, another significant event has occurred: as already indicated above, on July 27^th, 2017 u.s., Vivendi, represented by Mr. de Puyfontaine, Chairman of TIM as well as Managing Director of the same Vivendi, declared, during a meeting of the board of directors of TIM, that Vivendi started to exercise over TIM the direction and coordination activity.

Further to a request of Consob, forwarded through the AMF, Vivendi has informed the market that it does not exert the “control” pursuant to art. 2359 c.c. and art. 93 of the Consolidated Law on Finance over TIM.

1.4.2. In this respect, based on the considerations expressed herein below, it is not possible that an entity exercises the direction and coordination activity over the company, in which such entity holds a shareholding, without having also a control position pursuant to art. 2359 c.c. or a control position for the purposes of the law provisions governing the consolidated financial statement (in which cases, pursuant to art. 2497-sexies c.c.[17], a rebuttable presumption of the direction and coordination activity shall apply, so called “vertical group”), unless agreements or bylaws clauses are in place, which impose the coordination of the two companies (so called “horizontal group” pursuant to art. 2497-septies c.c., in which case, considering carefully the case, the means by which the direction and coordination activity is performed are the same established by art. 93, paragraph 1, lett. a), of the Consolidated Law on Finance[18])[19].

It can be surely stated that the mere declaration of the “relative” major shareholder concerning the existence of the direction and coordination activity or the intention to exercise it, is not considered as sufficient in order to submit such controlled company to the direction and coordination activity. In the legal opinion, dated August 6^th, 2017, sent by TIM to the Presidency of the Council of Ministers, reference is made to the direction and coordination activity as “a way to manage the company that the shareholder may choose” and it is indicated that the starting of the direction and coordination activity by Vivendi has been “autonomously and legally decided by such latter as the way to manage its shareholding”.

Such statement appears to disregard that an entity, in order to be in the position to choose a specific way to manage (not its own shareholding but) another company, in which such entity holds a stake, must necessarily have, at the same time, the power to influence the management of such company.

In this specific case, there are not agreements or bylaws clauses in place, binding TIM to be subject to the directives and the coordination expressed by Vivendi, therefore, there is no possibility other that the existence of a direction and coordination activity by virtue of the “control”. It is not possible that an entity imposes any directive unless it has the availability of the majority of the members of the BoD and if such entity is not in the position to influence the management of the issuer. In lack of any agreement or bylaws clauses binding a company to be subject to the direction of another entity, as outlined by some scholars, the existence of a control relationship is the precondition which is necessary but not sufficient in order to exercise such direction and coordination activity; it is necessary, in fact, something more (a quid pluris) consisting in the effective exercise of the unitary direction, it being the interference in the management of the company which exceed the mere exercise of the shareholders right exercisable in the shareholders’ meeting[20] [21].

Furthermore, ascertaining the existence of the direction and coordination activity in a so-called “vertical group”, inevitably confirms the existence of a “control” at least relatively stable and, certainly, not occasional or casual over the company whose shares are held. In fact, in the event of direction and coordination activity, the company belongs to a group of companies and, therefore, in order to protect the minority shareholders and the creditors, specific disclosures concerning the existence of the same group are required (in the companies’ register, in the corporate deed and correspondence, in the financial statement documents[22]), obligations to provide explanations on the reasoning for any activity and transaction performed based on the instructions of the parent company[23], liability vesting in the parent company[24], as well as specific cases in which the withdrawal from the company may be exercise by the minority shareholders[25]. Accordingly, in a group of companies the relative stability of the control exercised by an entity must be considered automatically existing (in re ipsa).

1.4.3. The Italian Law which delegated the Government to set forth the new corporate law provisions (Law October 3th, 2001, n. 366) confirms that the control is a natural pre-condition of the exercise of the direction and coordination activity.

In fact, as is well known, the law provisions concerning the direction and coordination activity have been introduced in the Italian civil code by the law on corporate matters dated 2003 (Legislative Decree no. 6/2003, c.d. “Renewal of the Company Law”), and art. 10 (“Groups”) of the Delegating Law expressly provides for that: “1. The new law provisions concerning the groups are inspired to the following principles and leading criteria:

a) establish a set of rules concerning company groups according to the principles of transparency and which assure that the direction and coordination activity is balanced with the interest of the group, of the controlling companies and of the minority shareholders of such latter;

b) require that the decisions, resulting from the evaluation of the interests of the group, be reasoned;

c) require disclosures concerning the fact that a company pertains to a group;

d) identify the cases in which appropriate protection measures are needed in favor of the shareholders, upon the access of the company into the group and the exit from it, and, if necessary, the right of withdrawal when the conditions for the mandatory takeover bid are not met”.

To the same extent the Illustrative Report concerning the Legislative Decree . n. 6/2003 outlines that “the main core problem of the phenomenon of the group was deemed to be the liability, of the controlling company vis-à-vis the shareholders and the company creditors of the controlled company”. In other lines of the Illustrative Report, making reference to the direction and coordination activity, it is implicit that such activity involves a “controlling entity” and a “controlled company”[26].

1.4.4. The Consolidated Law on Finance, also, while it establishes the requirements for the listing of the companies subject to direction and coordination activity, implies that such companies are controlled companies, unless the law intended to distinguish and regulates only some kind of companies subject to direction and coordination activity. In particular, art. 62 the Consolidated Law on Finance (“Market rules”) establishes that: “3-bis. Consob shall lay down in a regulation: …b) the conditions whose existence precludes the listing of shares of controlled companies subject to the activity of direction and coordination of another company”. Implementing such law provision, Consob in art. 37 of the Market Regulation established rules for the “controlled companies subject to the activity of direction and coordination”[27].

1.4.5. It is not possible to reach different conclusions neither grounding them on some recent decisions of the Italian courts[28], whereby, in order to avoid any circumvention of the laws, it was stated that the direction and coordination activity may also derive from a relationship of subordination different from those mentioned by art. 2497-sexies and art. 2497-septies c.c. and, therefore, different from the control based on the shareholding or contractual relationships and from specific clauses of the agreements of the bylaws. Such decisions, in particular, strengthen the rationale of the rules concerning the direction and coordination activity, which are aimed at extending the liability for the management of the company to other natural person or legal entities different from the target company but which are, anyway, in the position to exercise a systematic interference in the management activity of the target company.

It is necessary to underline that, notwithstanding the abstract statement affirming that the articles 2497 and followings may be applied regardless of the existence of a control under art. 2359 c.c., in all the cases under examination in those court decisions, the decision to ascertain the exercise of the direction and coordination activity has ever been assumed in such situations in which a relationship based on a shareholding or contractual control was in place.

Furthermore, the mentioned court decisions never concerned listed companies except for one case in which the mentioned art. 62 of the Consolidated Law on Finance had been taken into consideration.

In addition, with reference to the cases under examination, no other relationships could be envisaged, different from those which are typical of the shareholding or contractual control, which could grounded the existence of the direction and coordination activity based on other requirements.

1.4.6. The above arguments concerning the law provisions contained in the civil code governing the “groups” comfort that the construction, under a general perspective, concerning the legal qualification of the direction and coordination activity, intended as a mere management choice, on a  discretional basis, which is contained in the opinion submitted by the Company, appears not to be acceptable and that, on the contrary, the statement that a direction and coordination activity exists may not result other than as a consequence of the existence of a control relationship, which in the case hereby examined, consists in a shareholding control.

In conclusion, without prejudice to the arguments illustrated in the preceding paragraphs, it may be stated that, in any case, the factual evidences discovered in the case under examination, analyzed in the light of the law provisions contained in the Italian civil code, mentioned above, concerning the direction and coordination activity, allow to maintain that a “de facto control” relationship between Vivendi and TIM under articles 2359 c.c. and  93 of the Consolidated Law on Finance, exist.

1.5. Circumstances constituting indexes of the effective exercise of control by Vivendi in TIM

For sake of completeness, it is hereby outlined that, after the appointment of the majority of the directors in the shareholders’ meeting of May 4^th, 2017, the control has been concretely exercised, as evidenced by all the circumstances listed below:

- preliminarily, it is noted that no. 3 directors out of no. 10 designated by Vivendi (out of no. 15 members of the BoD) are in charge with top managing offices within the Vivendi group. Reference is specifically made to the directors: (i) Arnaud de Puyfontaine, member of the Management Board and Chief Executive Officer of Vivendi, Chairman of the Supervisory Board of Universal Music France and member of the Supervisory Board of Canal Plus; (ii) Hervè Philippe, member of the Management Board  and Chief Financial Officer of Vivendi, Vice president of the Supervisory Board of Canal Plus and member of the Supervisory Board of Universal Music France; (iii) Frèdèric Crépin, member of the Management Board and General Counsel of Vivendi, member of the Supervisory Board of Canal Plus and of Universal Music France;

• the resolution of the BoD dated June 1^st, 2017, which assigned to the board member, de Puyfontaine, the office as Executive Chairman of TIM and granted to the same significant proxies related to the strategic decisions of the group[29];

• the re-establishment of the Strategic Committee, approved by the BoD on June 1^st, 2017[30], composed of two board members pertaining to the top management of Vivendi (the board members, de Puyfontaine and Crépin) and by the board members Recchi, Bernabè and Frigerio;

• the composition of the Board Committees (Strategic Committee, Committee for Nomination and Remuneration and the Control and Risks Committee), characterized by the presence of a majority of board members selected from the list submitted by Vivendi;

• the obligation undertaken by Vivendi – within the procedure started by the European Commission according the European Regulation n. 139/2004 concerning the concentration Vivendi-TIM – to dismiss the holding held by TIM in Persidera S.p.A. (as acknowledged by the same European Commission following the adoption of the decision of May 30^th, 2017), without any previous involvement of the BoD of the same TIM (which has received such information on July 7^th, 2017) and after that TIM had stated in the last financial statement that such holding was strategic;

• the termination on July 24^th, 2017 of the office as director and manager of the Managing Director, Mr. Cattaneo, which had been recently confirmed Managing Director after the shareholders’ meeting of May 4^th, upon the exclusive initiative of the board member de Puyfontaine, as a consequence of a discussion with Mr. Cattaneo concerning the changes in the management with the possible involvement of Amos Genish (manager pertaining to the Vivendi group) as general manager with proxies;

• the decision of the BoD held on July 27^th, 2017 to grant, on a temporary basis, the proxies formerly assigned to Mr. Cattaneo to the Executive Chairman, de Puyfontaine, except for the assignment, ad interim, of the proxies concerning the Security and Telecom Italia Sparkle S.p.A. to the vice President, Giuseppe Recchi;

• the statement, made by the Chairman de Puyfontaine, concerning the starting of the direction and coordination activity by Vivendi over TIM;

• the assignment of a management role as general manager for operations of the Telecom Group in TIM to Amos Genish, manager of the Vivendi group[31], as rendered public by the Company on July 28^th, 2017;

• the signing by the board member de Puyfontaine of a very detailed term sheet with Canal Plus [Omissis][32];

• the circumstance that significant resolution of the BoD of TIM concerning the organization of the company, starting from May 4^th, 2017, have been adopted, with the favorable vote of the majority of the BoD, [Omissis] (i.e., the assignment of the proxies to the Chairman Recchi and to the Managing Director on May 5^th, 2017 and the assignment of the office of Chairman with proxies to de Puyfontaine and of Vice President to Recchi on June 1^st, 2017; the approval of the settlement agreement with the Managing Director Cattaneo on July 24^th, 2017).

2. LEGAL QUALIFICATION OF VIVENDI AS DE-FACTO COTROLLING ENTITY ACCORDING TO THE LAW PROVISIONS CONCERNING THE TRANSACTIONS WITH RELATED PARTIES

Specifically referring to the law provisions concerning the related parties, this Commission deems that the relationship between Vivendi and TIM is included in the cases of control set forth thereunder.

2.1. The definition of control included in the Consob Regulation on the Transaction with Related Parties

The article 3 of the Consob Regulation on the Transaction with Related Parties, in order to define the “related parties”, make reference to the Annex 1 of the same Regulation “Definitions of related parties and related party transactions and functional definitions thereof”.

The Annex 1 contains the definition of “control” which is functional to identify the related parties stablishing that the control “Control is the power to govern the financial and operating policies of an entity so as to obtain benefits”, as provided for in the IAS 24 and in the IAS 27 in force at the time of the issuance of the Consob Regulation on transactions with related parties.

The Annex 1, in addition, establishes that the existence of the control is presumed in the event that an entity holds, directly or indirectly, through its subsidiaries, more than one half of the voting rights of an entity (legal control), unless, as an exception, the contrary may be proved.

In the event that an entity hold one half or less, of the voting rights exercisable in the shareholders’ meeting (which is the case under examination), the control exists if that entity has:

a) “control of more than half of the voting rights by virtue of agreement with other investors;

b) the power to govern the financial and operating policies of the entity under a statute or agreement;

c) the power to appoint or remove the majority of the members of the board of directors or equivalent body of corporate governance, and control of the entity held by that board or body;

d) the power to cast the majority of the voting rights at meetings of the board of directors or equivalent body for corporate governance, and control of the entity held by that board or body.”

2.2 Legal Qualification of Vivendi as de-facto controlling entity of TIM according to the Regulation on Transactions with related parties

2.2.1. Based on the considerations expressed in the preceding paragraph 1, with respect to the existence of the control under articles 2359 of the Italian civil code and 93 of the Consolidated Law on Finance, this Commission deems that a de-facto control by Vivendi exists pursuant to lett. c) of the definition contained in the Annex 1 of the Regulation on the transactions with Related Parties, referring to “the power to appoint or remove the majority of the members of the board of directors or equivalent body of corporate governance, and control of the entity held by that board or body”.

2.2.2. However, the case under examination is also included in the case set forth in the Annex 1 of the Regulation on Transactions with Related Parties under lett. d) – which identifies the control in the “power to cast the majority of the voting rights at meetings of the board of directors or equivalent body for corporate governance, and control of the entity held by that board or body”.

In this respect, it is hereby underlined that the definition of the Regulation on Transactions with Related Parties includes cases of control which are not related to the exercise of the voting rights in the shareholders’ meeting and that consists in the possibility to direct, on an exclusive and unilateral basis, the management of the company. The control according to the Regulation on Transactions with Related Parties is grounded, accordingly, not only on the power to influence the shareholders’ meeting resolutions, but also, directly, on the “power to influence” the resolutions of the board of directors, which is the corporate body in charge with the exclusive power to manage the company (art. 2380-bis of the Italian civil code) and therefore the “financial and operating policies” of the undertaking.

Following the shareholders’ meeting of May 4^th, 2017, the situation referred to above has occurred as far as the shareholder Vivendi is concerned, without any further doubt.

2.2.3. Such conclusions as well as the considerations expressed with respect to the existence of the control under articles 2359 of the Italian civil code and 93 of the Consolidated Law on Finance, appear not to be disproved by the fact that the board of directors of TIM is composed by a majority of independent directors (considering that such issue has been examined in the legal opinion submitted to the Company on the matter). The existence of the power to exercise the majority of the voting rights in the board of directors by the shareholder is not invalidated by such circumstance.

In particular, with reference to the case under lett. d), this case is grounded on the presumption that the entity which has designated the majority of the board members exercises the majority of the voting rights within the board of directors. This always happens in the board of directors (such as in the BoD of Telecom) that approve the relevant decisions based on the majority of voting rights, without any specific larger quorum or any “casting vote”.

This presumption is grounded on an objective data– i.e., the designation of the majority of the members of the board of directors– which is independent from the “psychological” data consisting in the expression of the single director’s intention in the exercise of the voting rights within the single specific board resolution and, in particular, from the circumstance that the director is, or feels, “influenced” by the shareholder which has designated him.

In this respect, it is necessary to outline that, all the directors – regardless of whether they are executive or non-executive, qualified as independent directors or not, are subject to the duty to act for the benefit of the company and without any mandate relationship (vincolo di mandato), independently from the shareholder which have designated them.

A presumption similar to the one described above, is contained in the definition of significant influence set forth in the Regulation on Transactions with Related Parties. Such case, consisting in the “power to contribute to the decision concerning the financial and operating policies of the entity without having the control [instead of governing such policies as happens in case of control]”, is presumed in the event that an entity holds a stake equal to 20% of the share capital. On the contrary, if the entity holds a stake lower than the 20% of the share capital, such qualification may occur if some “factual indexes” of significant influence exist. In particular, such situation “is usually evidenced in the event that”, inter alia, such shareholder “is represented in the board of director of the investee company” (see the definition of “significant influence”, in the Annex 1 of the Regulation on Transactions with Related Parties). In such case, the fact that the entity “is represented in the board of directors” is ascertained based on objective factual indexes (i.e., the designation of the director) and is independent from a subjective analysis concerning the expression of the voting right by the single director or from the circumstance that such director is qualified as independent director.

In any case, under a general perspective, and with reference to any whatsoever notion of control which may envisaged, there is no inconsistency between the fact that the majority of the directors are independent and the exercise of the control by an entity on that company.

As a further proof of this conclusion, it is worth mentioning that the provisions contained in the mentioned art. 37 of the Market Regulation which imposes: (i) to the listed companies subject to direction and coordination activity of other companies to establish board committees composed of independent directors only; (ii) to the companies subject to management and coordination by another listed company to have a board of directors composed of a majority of independent directors, thus requiring a board of directors mainly comprised of independent directors in a company which is subject to an influence on the management even stronger than the control (the direction and coordination activity). The rationale of Consob’s approach in the adoption of the law provisions under art. 37 of the Market Regulation, is evidenced in the outcomes of the public consultation held in 2009, for the approval of the Regulation on Transactions with Related Parties, whereby it is specified that “the companies subject to direction and coordination activity by another listed company are structurally more exposed to the risk of exploitation. Given that the composition of the board of directors with the majority of independent directors is already adopted by one third of the listed companies, appears consistent with the exercise of the direction and coordination activity. In fact, the qualification as independent director does not imply that such director, inserted in a group, could not follow the directions expressed by the company that exercises the direction and coordination activity in the same way as any other director, but only that the same independent director – in lack of any specific connection (under an economic, professional and familiar viewpoint) with the company, the executive directors and the major shareholders of the company – is more autonomous in the evaluation of the interest of the company to execute a transaction, especially with related parties”.

The qualification of a director is an objective element which is grounded on the absence of direct relationships with the controlling shareholder or the company, so that this may assure, in principle, that he/she is more autonomous in the evaluation. This conclusion does not exclude that, in any case, a director  – even if independent – must be taken into account for the purpose of the ascertainment of the existence of the control.

2.2.4. In light of all the consideration illustrated above, the qualification on a voluntary basis of Vivendi as controlling entity within the procedure for the transactions with related parties is not consistent with the law provisions herein examined.

3. CONCLUSIONS

Further to all the consideration contained herein above, Vivendi is deemed to exercise the “de-facto control” over TIM pursuant to art. 2359 c.c. and art. 93 of the Consolidated Law on Finance, as well as for the purpose of the law provisions concerning the transactions with related parties.

The appeal against this decision may be filed with the Administrative Regional Tribunal (TAR) of Lazio within sixty days since the date of this decision.

THE CHAIRMAN
Giuseppe Vegas

Footnotes:

[1] It is worth noting that with reference to Part IV of the Consolidated Law on Finance (“Regulation of Issuers”), pursuant to art. 91 (“Consob's powers”), Consob exercises the powers set forth therein “having regard to the protection of investors and the efficiency and transparency of the market in corporate control and the capital market”.

[2] Art. 2359 c.c. (“Controlled companies and affiliated companies”) provides for that “the following  companies are considered controlled companies:

1) the companies in which another company has the availability of the majority of the voting rights exercisable in the ordinary shareholders' meeting;

2) the companies in which another company has the availability of voting rights sufficient to exercise a dominant influence in the ordinary shareholders' meeting;

3) the companies which are under a dominant influence of another company due to particular contractual links with the same. For the purposes of items (1) and (2) above, the votes exercisable by controlled companies, fiduciary companies and nominees are also computed, while votes exercised on behalf of third parties are not computed.

The companies on which another company exercises a significant influence are considered as affiliated companies. The influence is presumed in the event that the at least one fifth of the voting rights, or one tenth in the company is listed, can be exercised in the ordinary shareholders’ meeting”.

[3] This is in line with the definition established by art. 26 of the Legislative Decree no. 127/91 (“Implementation of the Directives no. 78/660/EEC and 83/349/EEC concerning corporate issues, related to annual and consolidated accounts, pursuant to art. 1, paragraph 1, of the Law March 26^th  1990, no. 69”) – which defines the “controlling enterprises” (using expressions almost coincident with those of art. 93 of the Consolidated Law on Finance), for the purposes of the obligation to draft the consolidated financial statement for the companies which are compelled to draft the financial statement according to the national law and not according to the international accounting standards.

[4] As indicated in the same Decision, such conclusion is consistent with the position expressed by Consob in the Decision DAC/98076144 of September 28, 1998 concerning the shareholding in “Banca Popolare di Spoleto” held by “Spoleto - Crediti e Servizi”. In such case, even though “Spoleto Crediti e Servizi” held the absolute majority of the voting rights,  it was not considered as the controlling company over the bank, according to art. 26 del d.lgs. n. 127/91, since certain shareholders agreement had been executed which impeded to the same “Spoleto Crediti e Sevizi” to exert the dominant influence both in the shareholders’ meetings and in the meetings of the board of directors of the bank. In the Decision, the case of “società Edizione Partecipations” (Gruppo Benetton) was also mentioned;  such company, at that time, denied to control Autostrade S.p.A. since, even though it held 60% of the intermediate company which controlled Autostrade S.p.A. and designated the majority of the  members of the board of directors, due to certain bylaws clauses which required specific larger quorum for the decision of the Board of Directors of the intermediate company did not have the possibility to direct, by itself, the decision of the board. Finally, in the Decision, the Commission, in connection with the legal qualification of the shareholding of Pirelli in Olimpia after a certain date,  the Commission reached the conclusion that, even though Pirelli always held the majority of the voting rights in the ordinary shareholders’ meeting of Olimpia was not, any longer, in the position to exert the control over the investee company since due to bylaws clauses it could not designate more than 5 members of the board of directors out of 10 members.

[5] The Decision also outlines that: “the possibility to exert the dominant influence – through the examination of the shareholders’ meetings occurred until May 29^th, 2002 – has been effectively used in two ordinary shareholders’ meetings of Olivetti (October 13, 2001 and May 8, 2002) which have adopted the main management decision of the ordinary shareholders’ meeting: the appointment of the directors and the approval of the annual financial statement. Through the appointment of all the directors of Olivetti in the shareholders’ meeting convened on October 13, 2001, Olimpia effectively confirmed the stability of its control over the management at least until the corporate restructuring of the Olivetti/Telecom Italia groups, analyzed herein below.”.

[6] As known, the slate voting system had been already introduced for the appointment of the Board of Statutory Auditors by the listed company, starting from 1998, through specific bylaws clauses mandated by the Consolidated Law on Finance. Then, the Law on the Protection of Savings introduced such voting system for the Board of Statutory Auditors directly in the Consolidated Law on Finance (see art. 148, paragraph 2, of the Consolidated Law on Finance).

[7] As provided for in the Consob Resolution n. 15915 of May 3^rd, 2007, which amended the Issuers’ Regulation in order to implement the voting system through lists of candidates.

For sake of completeness, the law provision of art. 147-ter of the Consolidated Law on Finance are herein below reported:

Election and composition of the Board of Directors

1. The Statute provides for members of the Board of Directors to be elected on the basis of the list of candidates and defines the minimum participation share required for their presentation, at an extent not above a fortieth of the share capital or at a different extent established by Consob with the regulation taking into account capitalization, floating funds and ownership structures of listed companies. The lists indicate which are the directors holding independent requisites established by law and by the Statute. The Statute may also provide that with regard to the sector for directors to be elected, what is not to be taken into account are the lists which have not reached a percentage of votes at least equal to half of the one required by the Statute for the presentation of same; for cooperative companies the percentage is established by the statutes also in derogation from article 135.

1-bis. Lists are deposited with the issuer, also by means of remote communication, in compliance with any requirements strictly necessary to identify the applicants indicated by the company, by the twenty-fifth day prior to the date of the meeting called to resolve on the appointment of the members of the board of directors and made available to the public at the company's headquarters, on the company's website and in the other ways envisaged by Consob by regulation, at least twentyone days prior to the date of the shareholders' meeting. Ownership of the minimum investment envisaged by subsection 1 is determined concerning the shares recorded in favour of the shareholder on the day on which the lists are deposited with the issuer. Related certification may also be submitted after filing, provided submission is within the time limit established for publication of the lists by the issuer […]”

3. Except as provided for in Article 2409-septiesdecies of the Civil Code, at least one member shall be elected from the minority slate that obtained the largest number of votes and is not linked in any way, even indirectly, with the shareholders who presented or voted the list which resulted first by the number of votes. In companies organised under the one-tier system, the member elected from the minority slate must satisfy the integrity, experience and independence requirements established pursuant to Articles 148(3) and 148(4). Failure to satisfy the requirements shall result in disqualification from the position. 4 […]”

[8] Art. 2368, paragraph 1, c.c. provides for that: “The ordinary shareholders’ meeting is validly constituted provided that at least half of the share capital is represented, excluding from the calculation the shares without voting rights in these shareholders’ meeting. The shareholders’ meeting approve the resolution by absolute majority, unless a larger majority is required by the articles of association. The articles of association may establish special rules for the appointment of corporate bodies.”

[9] By the term “record date” is intended the mechanism in order to determine the legitimation to attend and exercise the voting rights in the shareholders’ meeting of a listed company, which is based only on the evidence of the ownership of the shares at a certain date (the record date, which is the seventh business day before the shareholders’ meeting see. art. 83-sexies of the Consolidated Law on Finance). This mechanism refrains from limiting the free transfer of the shares in the period before the shareholders’ meeting: any transfer occurring after the record date, but prior to the date in which the shareholders’ meeting is held, is not taken into account for the purposes of the legitimation to attend and exercise the voting rights. In few words, by virtues of the Shareholders’ Rights Directive, the law has aimed at simplifying the exercise of the voting rights and the attendance in the shareholders’ meeting for those minority shareholders, in particular, those institutional investors, forbidding such impediment to the circulation of the shares in the period preceding the shareholders’ meetings. In fact, such impediment to the circulation of the shares for the purpose to attend the shareholders’ meeting, existing in the previous legislation, encouraged the non-attendance in particular of the institutional investors which preferred to have the free right to dispose of their shares rather than the right to exercise the relevant rights of attendance and voting.

In fact, considering the 2011 which was the first year in which such mechanism of the record date was applied, the number of listed companies involved in the activism of the minorities for the appointment of the directors has increased.

[10] The analysis of the attendance in the shareholders’ meetings of the companies pertaining to the FTSE MIB index in the years 2010 and 2011, it being the period preceding and subsequent to the entry into force of the record date, shows a material increase of the attendance to the shareholders’ meetings: the average percentage of attendance of such meetings has passed from 50% to 60% of the share capital and, in particular, the average attendance of institutional investors has increased, considering that in 2010, the percentage of such investors attending the shareholders’ meeting was slightly higher than 10% of the share capital (one fourth of the voting rights represented in the shareholders’ meeting) while in 2011 they represented more or less the 20% of the share capital (one third of the voting rights). In the subsequent years, the attendance of the institutional investors in the shareholders’ meeting has further increased. With specific reference to the shareholders’ meetings held in 2016 for the FTSE MIB companies, against an average percentage of attendance equal to 66% of the share capital, the attendance of the institutional investors reached the 25% of the share capital (higher than 40% of the voting rights represented in the shareholders’ meeting; source: Consob analysis on the data published in Consob’s Annual Report and Report on the Corporate Governance).

[11] Namely, art. 44-quater, paragraph 2, of the Issuers’ Regulation provides for that: “2. The following cases of cooperation between several parties shall not be classified, as themselves, as acting in concert pursuant to Article 101-bis, subsection 4 of the Consolidated Law:

[…]

b) agreements for the submission of lists of candidates for the election of the corporate bodies pursuant to Articles 147-ter and 148 of the Consolidated Law, provided that said lists include a number of candidates that is less than half of the members to be elected or are intended for the election of representatives of the minority shareholders’; […]

d) cooperation between shareholders to: […]

2) gain votes for a list which presents a number of candidates that is less than half of the members to be elected, or is directed to the election of representatives of the minority shareholders, also through the solicitation of voting proxies for the purpose of voting for said list.”

[12] In particular, 4 cases have occurred in which the list submitted by the institutional investors and directed to the appointment of the minority of the board of directors has obtained the majority of voting rights: Telecom Italia in 2014 (at the time when the stake representing the relative majority was held by Telco), Unicredit in 2015, UBI and Snam Rete Gas in 2016. In all such cases, the board of directors has been completed through the approval of the proposal of the non-institutional shareholder having the relative majority to appoint the candidates not appointed within their list, resolved according to the voting majority established by the Italian civil code, allowed by the exit from the meeting of institutional investors. The same situation occurred in further 3 cases concerning the appointment of the Board of Statutory Auditors (Yoox, Snam and Banca Monte dei Paschi di Siena).

[13] Namely, Enel S.p.A., Terna - Rete Elettrica Nazionale S.p.A., Leonardo S.p.A. and BPER Banca S.p.A..

[14] Reference is made to the shareholders’ meetings held on April 14^th, 2008, April 12^th, 2011, April 16^th, 2014 and May 5^th, 2017.

[15] In particular, observing the major shareholdings of TIM since 2007 until now: (i) the “relative majority shareholder” has held a stake ranging from 20% and 24% of the share capital; (ii) the other major shareholders, mainly institutional investors, never linked through any shareholders’ agreement and never holding, individually, a stake exceeding 4,9%, have held, collectively a stake ranging from 4% and 16%; (iii) the percentage of the share capital held by the market (shareholding distributed among retail and institutional investors) has changed in range from 62% and 76% (analysis on data extracted by Consob concerning the shareholding of TIM as of December 31 ^th of each year).

[16] Evidence concerning the attendance to the shareholders’ meetings resolving upon the approval of the annual financial statement in the last years shows that the institutional investors – so classified for the purpose of the drafting of Consob’s Report on the Corporate Governance as funds, banks and insurance companies which based on the amount of the shareholding or on the activity carried out do not constitute stable shareholders of the issuer – have represented in the last 3 years the majority of the share capital attending the shareholders’ meeting (ranging from 58% and 60%).

[17] Pursuant to art. 2497-sexies (“Presumptions”) c.c.: “For the purposes of this section, it is presumed, unless the contrary is proved, that the direction and coordination activity of a company is exercised by the company or the entity which is compelled to include it in the consolidated financial statement or in any case which controls it pursuant to art. 2359”.

It appears that the rebuttable presumptions according to art. 2497-sexies, which is grounded on the situations ordinary happening as “normal”, within the possible cases of the companies’ structures, consider as natural or in any case, highly probable that the control power leads to the exercise, in concrete, of the direction and coordination activity, introducing, a reversal of the burden of proof  (the controlling entity shall prove that it does not exercise in concrete the direction and coordination activity).

With reference to such presumption, the case-law and the scholars have envisaged some indexes revealing such activity, which, depending on the case, may strengthen or, on the contrary, supersede such presumption pursuant to art. 2497-sexies c.c.. In particular, there are some acts/facts which may constitute the effective exercise of the direction and coordination activity; for instance the “drafting and approval by one company or entity of the business, financial or strategic plan of the other company; the approval of the budget, the issuance of guidelines or instructions concerning the decision in connection with financial and banking items; the definition of commercial and market strategies or in any case of a “global plan” within which  the business decision of the group may be referred to; guidelines or instructions concerning the selection of the counterparties or of material transactions such as acquisitions and dismissals; the centralization in the controlling company of the treasury (cash-pooling) or of such other functions of financial assistance such as the issuance of guarantee in favor of the controlled company also within a plan of group guarantee; the issuance of authorizations for any initiative of the controlled company resulting in an investment exceeding certain thresholds or in any case in material investments considering the business of the controlled company; the drafting or approval by the controlling company of the organizational chart of the controlled company concerning the main business functions; the drafting of “group regulations” governing the relationships among the group companies and the controlling company” (see. C. Picciau, sub art. 2497-sexies, in “G. Sbisà, Direzione e coordinamento di società, Commentario alla riforma delle società, diretto da P. Marchetti”, L.A. Bianchi, F. Ghezzi, M. Notari, Milano, 2012, p. 361.

A decision of the Tribunal of Mantova dated 2014 (Tribunal of Mantova, section II, October 16^th, 2014) has indicated, as indexes which may evidence the direction and coordination activity even “mere facts, such as ordinary meetings among managers of the parent company and of the companies subject to its direction or exchanges of communications concerning specific requests and responses about the material management decisions of the company which is supposed to be under the parent company’s direction [...]”, in any case “[...] given that it is necessary to prove something more (a quid pluris), it being the concrete and effective exercise of a management and strategic power (having a positive outcome, in term of fulfilment of the instructions received)”.

[18] Pursuant to art. 2497-septies (“Coordination among companies”) c.c.: “The provisions of this section shall apply also to the company or entity, not included in the cases under art. 2497-sexies, which exercises direction and coordination activity by virtue of an agreement with the same companies of clauses of their bylaws”.

[19] According to the scholar, G.F. Campobasso, “Diritto Commerciale”, II, Torino, 2010, p. 289, the group of companies is “an aggregation of undertakings, formally self-standing and independent one from the other, but which are subject to a unique direction. All the companies are subject to the dominant influence of another company (the parent company), which directly or indirectly controls them and direct their business activity following a unitary strategy, in order to achieve a sole purpose common to all the group companies (so-called group-interest)”. The phenomenon of the groups is an economic phenomenon that, prior to the entering into force of the new law provisions concerning the companies in 2003, was not entirely regulated by the Italian civil code. The group of companies was admitted by the case-law even beforehand (ex multis, Cassazione civile, sez. I, 26/02/1990, n. 1439, so-called Caltagirone decision). Starting from the beginning of the 1990s , the case-law has affirmed that the influence of the controlling shareholder, even a natural person, exercised from the outside and not in the shareholders’ meeting is legal (save for any misuse). Such influence is conceived by the case-law as a factual phenomenon, which, has the characteristic to be more incisive compared to the mere control. Furthermore, the law provisions governing the extraordinary administration procedure for large insolvent companies, had provided for the notion of “unitary direction” (art. 90 of the Legislative decree no. 270 del 1999 concerning the the extraordinary administration procedure for large insolvent companies).

[20] According to the scholar, Campobasso G.F., “Diritto Commerciale”, II, Torino, 2010, p. 295, in order to perform the direction and coordination activity it is necessary to envisage something more (a quid pluris) in addition to the mere control, “even though is undisputable that the control relationship normally results in a group relationship”.

[21] According to the scholar, M. Lamandini, “Commento all’art. 2497 sexies” in “Le società per azioni”, diretto da P. Abbadessa- G. Portale, tomo II, 2016, 3131, “the direction and coordination activity and the control are, obviously, different cases, meaning that, as already correctly outlined, the first one constitutes a subset of the second one, it being characterized by an additional amount of power (a quid pluris) both in term of content (inter alia, refer to the scholars Montalenti and Picciau) [namely, Montalenti, in “Le Società per azioni”, in Tratt. D. comm., a cura di Cottino, IV, 1, 2010, 1039, and Picciau, op. cit., 345] “is it also correct saying that, on the other hand, according to a diffuse and correct position, unitary direction and direction and coordination activity are expressions which are equivalent in term of facts; the case-law recognize that notwithstanding the existence of the “control”, in order to recognize the direction and coordination activity is necessary the evidence of “something more” (quid pluris) demonstrating an effective management interference in the company business (Tribunal of Pescara, 16 gennaio 2009, in Riv. d. priv., 2009, II, 115; Tribunal of Palermo, 15 giugno 2010, F.it., 2011, c. 3184)”. See. Also the scholar G. Scognamiglio, “Autonomia e coordinamento nella disciplina dei gruppi di società”, Torino, 1996, p. 30 e ss., according to whom, given that the dominant influence is based on the control, the unitary direction is conceived, in a broader and meaningful way, as a power which results in the activity of planning, coordination and direction of the controlled companies by the controlling company in order to obtain a group benefit.

[22] See art. 2497-bis c.c. (“Disclosures”).

[23] See art. 2497- ter c.c. (“Reasoning of the Decisions”).

[24] See art. 2497 c.c. (“Liability”).

[25] See art. 2497-quater c.c. (“Right of withdrawal”). Note that the right of withdrawal is excluded in the event that the law provisions concerning the mandatory takeover bid are applicable (for the listed companies), exactly, as a consequence of the fact that the acquisition or the loss of the direction and coordination activity are similar to the acquisition and the loss of the control. The illustrative Report of the new company law outlines that: “the right of withdrawal was meant to be granted to the shareholder of the company subject to the direction and coordination activity, first of all if the scope of activity of the controlling company changes […]; if the activity of the controlling company changes in a way that it may materially and directly change the economic and financial conditions of the company subject to the control, resulting in a change of the risk profile, about which the non-controlling shareholder is concerned”.

[26] In the Illustrative Report it is also clarified that “in implementing the delegated powers […] it was deemed inopportune to establish or refer to, any whatsoever notion of group or control”. This was made for two reasons:

- the several definitions of group existing in the relevant framework are aimed at ruling specific issues;

- any new notion would fail to be consistent with the progressive development of the company economical and legal environment.

[27] In particular art. 37 (“(Inhibitory conditions to the listing of shares of companies subject to management and coordination by other companies) of the Market Regulation provides for as follows: “1. The shares of subsidiaries subject to management and coordination by another company or entity may not be admitted to trading on an Italian regulated market if the subsidiaries:

a) have not fulfilled publication obligations pursuant to article 2497-bis of the Italian Civil Code;

b) do not have independent decision-making powers in relations with customers and suppliers;

c) have a centralized treasury, with the company exercising sole control or another company of the group, that does not satisfy the interests of the company. The satisfaction of interests of the company shall be confirmed by the board of directors by an analytically justified statement and verified by the board of statutory auditors;

d) do not have an internal control committee composed of independent directors as defined in subsection 1-bis. Where established, other committees recommended in codes of conduct on corporate governance, issued by regulated market management companies or sector or financial associations, shall also be composed of independent directors. For companies subject to management and coordination by another Italian or foreign company with shares listed on regulated markets, a board of directors in which the majority of members are independent directors is also required. For the purpose of this paragraph, persons appointed as director in the company or entity with management and coordination or in listed subsidiaries of that company or entity cannot qualify as independent directors. For companies adopting the two-tier administration and control system, however, an internal control committee must be set up within the supervisory board that satisfies the following requirements: i) at least one member is a director appointed by minority interests, where present; ii) all committee members are independent pursuant to subsection 1-bis.

1-bis. For the purpose of this article, “independent directors” and “independent supervisory board members” shall mean:

- directors and board members meeting the independence requirements envisaged in article 148, subsection 3 of the Consolidated Law on Finance, and any other requirements in the procedures specified in article 4 of the regulation adopted by Resolution no. 17221 of 12 March 2010 on related

party transactions or in sector regulations that may be applicable on the basis of the company's business activities;

- if, pursuant to article 123-bis, subsection 2 of the Consolidated Law on Finance, the company declares adoption of a code of conduct promoted by a regulated stock exchange company or sector association envisaging independence requirements at least equivalent to those of article 148, subsection 3 of the Consolidated Law on Finance, its independent directors and board members of that company shall be recognized as independent by that company in accordance with the code of conduct concerned.

1-ter. Companies with listed shares that are subject to management and coordination of another company shall adapt to the provisions of article 37, subsection 1, paragraph d) within thirty days of the first shareholders' meeting called to renew the board of directors or supervisory board.

2. Subsidiaries with listed shares that do not feel they should fulfil the publication obligations pursuant to subsection 1a) shall provide a detailed indication in the management report pursuant to article 2429 of the Italian Civil Code of the reasons why they do not consider they are subject to the management and coordination of the parent company.”

[28] See the decision of the Tribunal of Palermo dated June 3^rd, 2010, the decision of the Tribunal of Milan n. 42294-1/2013 dated December 20^th, 2013, the decision of the tribunal of Rome, sez. III, dated January 22^nd, 2014, the decision of the Tribunal of Milan n. 13179/2014 dated October 23^rd, 2014 and the decision of the Tribunal of Milan n. 13636 dated December 14^th, 2016.

[29] De Puyfontaine was vested with the following delegated powers of i) the identification of the guidelines for the development of the Group, in agreement with the Chief Executive Officer, and the supervision of the development and delivery of the strategic, industrial and financial plans; (ii) the supervision of the definition of organisational arrangements,  economic and financial operations and the process of defining the guidelines of the internal control and risk management system; (iii) the organisation of the Legal Affairs, Institutional Communication, Public Affairs, Brand Strategy and Media and Corporate Shared Value departments, and the governance of the Fondazione TIM; (v) representing the Company and the Group in its external relations with regulators, institutions and investors.

[30] It is worth reminding that the Strategic Committee of TIM shall: (i) “provide a support in the item having a strategic importance”; (ii) “upon request of the Chairman of the Board of Directors and the Managing Director and by coordination with the mandate and powers of such latter, carries out preliminary evaluation on items involving the strategic decision of the group”; (iii) “provide opinions and express recommendation on the proposals of the business plan to be submitted to the board of directors” (see art. 8 of the Company’s Corporate Governance Principles of TIM).

[31] In the press release spread by TIM on July 28^th, 2017, it is specified that Mr. Genish is in charge as Chief Convergence Officer at Vivendi, with responsibility for developing the Group’s convergence strategy involving content, platforms and distribution.

[32] [omissis]