Employee share plans in Italy: regulatory overview
A Q&A guide to employee share plans law in Italy.
The Q&A gives a high level overview of the key practical issues including, whether share plans are common and can be offered by foreign parent companies, the structure and rules relating to the different types of share option plan, share purchase plans and phantom share plans, taxation, corporate governance guidelines, consultation duties, exchange control regulations, taxation of internationally mobile employees, prospectus requirements, and necessary regulatory consents and filings.
To compare answers across multiple jurisdictions, visit the Employee Share Plans: Country Q&A tool.
This Q&A is part of the global guide to employee share plans law. For a full list of jurisdictional Q&As visit www.practicallaw.com/employeeshareplans-guide.
It is common for employees to be offered participation in employee share plans, especially for ordinary employees of large companies, as there are certain tax reliefs, and for the top management in listed companies. In addition, such plans are very common in the private equity sector to incentivise key employees.
There is no legislation that prevents the employers from offering a share plan where the shares to be acquired are in a foreign parent company or a foreign company within the group. This is a quite common approach for multinational companies. However, for Italian individual income tax purposes, unless a ruling provides otherwise, dividends and capital gains deriving from shares in a foreign company are fully taxable if:
The company is tax resident in a "black listed" country listed in Ministerial Decree 21 November 2001.
The shareholding exceeds any of the following:
2% of the voting rights exercisable at the ordinary shareholders meeting of the company, if the shares are listed;
20% of the voting rights, if the shares are not listed;
5% of the capital of the company, if the shares are listed; or
25% of the capital, if the shares are not listed.
Share option plans
There is no legally defined form of share option plan. In practice, the most common share plan structure is as follows:
The employees are given the right to subscribe a certain number of shares after a certain period of time known as the vesting period (usually three years).
The shares usually are issued through a share capital increase, but they also can be existing shares.
While in the past the exercise price was often lower or materially lower than fair market value, it is now more common for the exercise price to equal the fair market value at the time of the grant of the option. While different mechanics are possible, the tax consequences would have to be assessed.
Usually, but not necessarily (with the exception of financial institutions and listed companies), performance conditions are attached to the exercise of options.
This kind of scheme was popular in the past because of generous tax reliefs, which have since been removed or reduced. For income tax purposes, options assigned to all employees or to the same category of employees are exempt up to EUR2,065.83, if the options are not transferred within three years from the assignment.
Discretionary/all-employee. There is no principle of equal pay in Italy, and an employer can use its discretion to decide the beneficiaries, and vary the terms and conditions for different beneficiaries. This discretion must be exercised without discrimination on the basis of sex, race, religion, language, opinion and personal conditions.
Non-employee participation. An option can be granted to a member of the board of directors (this is quite common) and to external consultants (although this is uncommon).
Maximum value of shares. Italian law does not provide for a maximum value of shares either per-company or per-employee. For financial institutions, the Bank of Italy has set a cap on the ratio between an employee's base salary and variable remuneration (see Question 22).
Market value. It is not mandatory for options to have an exercise price equivalent to market value at the date of grant. The employer can determine a different strike price but the choice has tax consequences.
Specifying that the options are only exercisable if certain performance or time-based vesting conditions are met is the most common approach. The Corporate Governance Code of the Italian Stock Exchange regulator and the Bank of Italy require this for share plans for directors and executives with key management positions in listed companies and financial institutions (see Question 22).
Following the enactment of Law Decree No. 112 of 25 June 2008, as further amended by Law No. 133 of 6 August 2008, the income tax exemption regime for share option plans has largely been abolished. The remaining exception is that, for income tax purposes, options assigned to all employees or to the same category of employees are exempt up to EUR2,065.83, if the options are not transferred within three years from assignment.
The exercise of the option renders the employee subject to income tax. Income tax is payable by reference to the fair market value of the share acquired at the time of exercise, minus any amounts paid by the employee (taxable income). The fair market value of a listed share is the average official price of the share during the period ending on the date of vesting and starting on the same day of the preceding calendar month. The taxable income qualifies as employment income and is subject to income tax at ordinary progressive rates up to 43%, plus regional surcharge and, where applicable, municipal surcharge.
A further 3% solidarity surcharge is levied on annual personal income exceeding EUR300,000. Taxpayers are entitled to a tax deduction equal to the amount of the solidarity surcharge. This solidarity surcharge has been enacted for tax years from 2011 to 2016 and may be extended to subsequent years.
Variable compensations paid (in the form of bonuses and share options) to executives or directors of companies acting in the financial sectors are also subject to a further 10% surcharge on the entire variable compensation paid in excess of the fixed portion of compensation.
The employee must also pay employee's social security contributions on taxable income unless either:
He is an employee subject to a social security contribution ceiling and the taxable income exceeds this ceiling.
No social security contributions are due because the taxable income qualifies for the exemption from social security contributions provided for by Article 27(4)(g-bis) of Presidential Decree No. 797 of 30 May 1955.
Under guidelines issued by the Italian social security authority (Istituto Nazionale della Previdenza Sociale) (INPS), this exemption applies to a share option plan if:
The plan is not addressed to all employees.
The vesting of the awards granted under the plan is subject to conditions provided for by the plan.
The plan provides only for the assignment of shares to employees (and not also cash).
When the employee exercises options to acquire shares, the employer must withhold any income tax payable (or any social security contributions, if due) and account for this amount to the Italian tax authorities by the 16th day of the month following the month in which the option was exercised. Taxes are withheld from the employee's salary at source. The employee must provide the employer with the funds by the due date if the salary is insufficient.
The employee is personally responsible for reporting any taxable income in his tax return (as well as any capital gain tax on the sale), unless a specific exemption from this reporting obligation applies. Reporting obligations may also arise for holdings of shares and other financial assets abroad.
There is a charge to capital gains tax when the shares acquired on exercise are sold. The capital gain is calculated as the sales proceeds less the tax base (usually the fair market value of the shares at the time of exercise).
The capital gain, if any, is in principle subject to a substitute tax levied at a rate of 26% if the shareholding in the company does not represent more than either:
2% of the voting rights exercisable at the ordinary shareholders meeting of the company, if the shares are listed.
20% of the voting rights, if the shares are not listed.
5% of the capital of the company, if the shares are listed.
25% of the capital if the shares are not listed.
The substitute tax should be discharged and reported by the employee, or by a financial intermediary, depending on the relevant circumstances (to be checked on a case-by-case basis).
The sale of shares does not require the payment of social security contributions.
Share acquisition or purchase plans
Under share acquisition plans, shares may be granted to the employees either at no cost (share grant plans) or against a purchase/subscription price (share purchase plans).
Share grant plans
Main characteristics. The main characteristics of share grant plans include:
The shares are granted either immediately (restricted stock) or after a vesting period (restricted stock unit).
As the shares are granted at no cost, the employer can unilaterally determine the number of shares to be granted to the beneficiary.
For restricted stock units, the grant of the actual shares at the end of the vesting period is usually subject to certain performance targets (such as EBITDA levels) having been achieved.
Lock-up provisions usually apply (this being particularly true with respect to restricted stock, where shares are granted immediately).
No investment is required on the employees' part.
Put option rights to sell the granted shares (such as to the issuer's parent company) are not uncommon, particularly where the issuer is a private company.
Types of company. While also used by private companies, share grant plans are particularly popular among listed companies.
Share purchase plans
Main characteristics. The main characteristics of share purchase plans include:
An investment is required on the employees' part, as the shares are to be purchased (or subscribed and paid for) by the employees.
As the shares must be purchased by the beneficiary, he is usually allowed to determine the number of shares to purchase, with a cap.
The shares purchase/subscription price is often (but not always) below the fair market value (and it is not uncommon to have a percentage of free shares being granted for every certain amount of purchased shares).
As is the case in share grant plans, put option rights to sell the relevant shares are not uncommon, particularly where the issuer is a private company.
Lock-up provisions are often applied.
Types of company. While occasionally used also by listed companies, share purchase plans are especially popular among private companies (in particular by private equity houses to structure the co-investment of the target company's top management and/or the roll-over of the selling shareholders' sale proceeds into the target company).
Acquisition or purchase
The general rules are the same as for share option plans (see Question 4).
Share grant plan/share purchase plan
If the shares are granted upfront, this is a taxable event for income tax purposes.
Income tax is payable on taxable income (see Question 8).
Certain restrictions on the award may be required by the Italian Stock Exchange regulator or by the Bank of Italy for listed companies and financial institutions respectively, and these cannot be contractually avoided (see Question 22). Apart from these, it is possible to structure the award so that the shares vest once defined performance or time-based conditions are met.
Share grant plan and share purchase plan
Any capital gain realised on the sale of the shares is subject to tax (see Question 9).
Phantom or cash-settled share plans
Phantom share plans
The most common kind of phantom share plan in Italy is a bonus scheme that has a reference period (usually one to three years) with a performance condition, all or in part, linked to the performance of the shares of the employer (or of the parent company).
Main characteristics. These largely reflect share option plans, with the main difference that they are cash based.
Types of company. These are usually used by listed companies or non-listed companies with a listed parent company.
Popularity. Phantom share plans are not very popular as there is no tax/social contribution relief and they are treated as ordinary salary.
Italian law does not provide any specific rules for the grant of phantom or cash-settled awards. As they are variable remuneration, in financial institutions they are subject to the limit on the ratio between base salary and variable remuneration set by the Bank of Italy (see Question 22).
The general rules are the same as for share option plans (see Question 4).
Phantom or cash-settled awards can be made to vest only where performance or time-based vesting conditions are met. This is the most common approach in Italy, and it is required by the Italian Stock Exchange regulator and by the Bank of Italy for listed companies and financial institutions (see Question 22).
Tax or social security contributions are not charged when vesting conditions are met, but when the cash compensation is actually paid (see Question 21).
The payment amount, when paid, is subject to income tax and social security contributions. Income tax and employee social security contributions are withheld by the employer and paid to the tax authorities on behalf of the employee. See Question 8.
Corporate governance guidelines, market or other guidelines
Share plans for the employees, directors and non-employee officers of Italian listed companies (and their controlling and/or controlled companies) are subject to specific rules set out by Legislative Decree No. 58 of 24 February 1998 and its implementing regulations. Under these rules:
Compensation plans based on shares must be subject to a resolution of the general meeting of shareholders of the issuer.
Strict disclosure requirements are provided for the issuer with reference to terms and conditions, beneficiaries and value of the plan. In addition, the issuer's directors and top managers may have to report transactions concerning the issuer's shares, in accordance with internal dealing rules and disclosure obligations.
Further rules are also provided by the Corporate Governance Code (Codice di Autodisciplina), which sets out specific principles referred to remuneration for listed companies' directors and top managers, such as:
A proper balance between the variable and non-variable components, with the provision of a maximum amount on set the variable component.
Pre-determination of the performance objectives, which must be linked to the creation of value for shareholders.
Adherence to the Corporate Governance Code is voluntary for listed companies. However, under the "comply or explain" principle they must state in their corporate governance report whether they have complied with its rules, or make clear, through meaningful explanations, why they have not (including a description of the alternative measures taken, if any).
In addition, specific regulations apply to the remuneration plans for directors and senior managers of banks, insurance companies and other financial companies, and a new set of regulations has been adopted with regard to banks' personnel remuneration systems to promote competitiveness and provide for best governance practices. On 18 November 2014 the Bank of Italy amended Circular No. 285 in order to implement Directive 2013/36/EU on capital requirements (Capital Requirements Directive IV), setting out regulations on:
Balancing the ratio between the fixed and variable remuneration for employees of financial institutions. Part of the variable remuneration (at least 50%) must not be paid in cash and must consist of a balance of the following:
shares, share-linked instruments, or, in case of non-listed banks, equivalent instruments;
where possible, other instruments identified in EU Commission Regulation No. 527/2014 supplementing the Capital Requirements Directive IV.
These instruments are subject to a retention period (to be indicated in the incentive and remuneration policy of the institution) during which they cannot be sold.
Deferred remuneration. At least 40% of the variable remuneration (or 60% in case of particularly high amounts) must be deferred over a period of not less than three or five years.
After-the-fact risk adjustments, reflecting the levels of performance net of any risks and taking into account individual behaviours. These include:
malus clauses (arrangements that permit the institution to prevent the payment of all or part of the amount of the deferred remuneration in relation to the risk outcomes of performances); and
clawback clauses (arrangement that permits the return of an amount of the remuneration (both up-front and/or deferred), in case of significant losses to the institution or actions committed intentionally or arising out of gross negligence).
Clawback and malus clauses affect any individuals who participated or were responsible for:
conduct that resulted in significant losses to the institutions;
breaches of duties to meet requirements of independence, professionalism and honour and fair management of conflicts of interest.
It is very common for share option plans to provide for good/bad leaver provisions.
Usually the plans provide that the beneficiaries are not entitled to any compensation for loss of options or awards. However, the risk of a "backdoor claim" (by which the employee seeks damages arising out the loss of options against the employer caused by unfair dismissal) must be assessed on a case-by-case basis.
There are no exchange control regulations which restrict rights derived from owning securities.
Holdings of shares and other financial assets may be subject to specific reporting obligations.
The ownership of shares in a foreign company can trigger the application of indirect taxes in Italy, such as stamp duty, or wealth tax on foreign assets (IVAFE). IVAFE is generally due on the financial instruments held abroad by Italian residents at the annual rate of 0.2%, which is normally levied on the fair market value of the financial instruments. If, however, financial instruments are held through an Italian intermediary, IVAFE is not due, but a stamp duty is generally due at the annual rate of 0.15%, which is normally levied on the fair market value of the financial instruments.
The ownership of shares in a foreign company can also trigger the application of income tax on the dividends collected, if any.
See Question 25.
Internationally mobile employees
An individual who is tax resident in Italy is liable to income tax on his worldwide income.
An individual is regarded as being tax resident in Italy if he either:
Is recorded in the Italian register of the resident individuals (kept by each municipality (anagrafe dei residenti)).
Has his "domicile" or "residence" in Italy (as defined in the Italian Civil Code), for more than 183 days per calendar year.
Therefore, when an employee exercises a share option he generally realises taxable income fully subject to income tax in Italy. However, the Italian taxation may be limited under a tax treaty fully compliant with the OECD Model. In a recent case, the Italian tax authorities confirmed that the income realised by an Italian tax resident employee on share options granted when he was tax resident abroad was taxable in Italy according to the national tax rules, while the possible double taxation could be resolved through a foreign tax credit or the mutual agreement procedure.
The offer of shares to employees under a share plan is subject to the same regulations applying to any offer of financial products in Italy according to Legislative Decree No. 58/98 and Consob Regulation No. 11971 of 14 May 1999. Under these regulations, in the event of a public offering of securities, a prospectus must be drafted and filed with the public authority responsible for regulating the Italian financial markets (Commissione Nazionale per la Società e la Borsa) (Consob), provided that no prospectus exemptions apply.
According to Consob, there is no public offering of securities (and therefore no prospectus is needed) when the options being assigned are non-transferable and granted with no payment from the beneficiaries. In addition, Consob has clarified that the exercise of options by the beneficiaries is not a public offering, as it is simply an execution of a previous offer.
Under Consob Regulation No. 11971/99, there are exemptions for offerings of securities to employees, former employees, directors, former directors and tied agents if:
The issuer has its registered or head offices in a country within the EU and a document is made available to the offerees containing information on the number and nature of securities, and the reasons for, and details of, the offer (information document).
The issuer does not have its registered or head offices in a country within the EU but its financial instruments are already admitted to trading on an EU regulated market. If so, no information document is needed.
The non-EU issuer already has financial instruments admitted on a third-country market and:
the European Commission has adopted an equivalent decision regarding the third-country market under Article 4 of Directive 2003/71/EC on the prospectus to be published when securities are offered to the public or admitted to trading (Prospectus Directive); and
adequate information and the information document (drawn up in a language commonly used in international finance) are made available to the offerees.
The following exemptions apply irrespective of whether the offer is addressed exclusively to the issuer's employees, former employees, directors, former directors and tied agents:
Number of offerees. An exemption is provided for offerings addressed to fewer than 150 offerees resident in Italy.
Overall value of the offering. An exemption is available when the total consideration of the issuer's securities to be offered does not exceed EUR5 million, to be calculated on an EU-wide basis taking into account the consideration of the same kind of securities offered by the same issuer in the previous 12 months.
An exemption is available when the total consideration of securities for each investor and for each separate offer amounts to at least EUR100,000.
Value of denomination per unit. An exemption is available when the denomination per unit amounts to at least EUR100 000.
If one of the exemptions applies, no prior filing of the information document is required, not even for information purposes. The issuer can freely determine the structure and the contents of the information document, but it must include the characteristics and details of the offering as well as the reasons for it.
If none of the above exemptions apply, it is necessary to draft and file a prospectus and obtain Consob's authorisation before making the public offer. Regulation (EC) 809/2004 implementing the Prospectus Directive as regards prospectuses and dissemination of advertisements (Prospectuses Regulation) and further amendments, determine the contents of the prospectus. Consob may require additional information and clarifications before authorising the publication of the prospectus and allowing the offer to be made.
Other regulatory consents or filings
When an employee wishes to take up an offer of financial products in an employee share plan, he must complete a specific subscription form including all the relevant details of the offer.
Provisions regulating the "door-to-door" sale of securities under Legislative Decree No. 58/98 have been amended in line with Directive 2010/73/EU amending the Prospectus Directive and Directive 2004/109/EC on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market (Amendment Directive). These provisions specify that an offer of securities exclusively addressed to directors and employees of the issuer, and/or its controlling company and subsidiaries and taking place at their respective premises, is not to be considered a "door-to-door" sale of securities, and therefore the presence of an authorised "financial salesman" (promotore finanziario) is no longer required.
A representative of the issuer may directly collect the subscription forms and send them to the bank or financial intermediary appointed for their processing.
The Personal Data Protection Act (Legislative Decree No. 196, 30 June 2003) provides for specific rules and authorisation required for personal data processing by any person in Italy.
Individuals who are requested to provide personal data must be informed of:
The intended purposes of the data.
The intended methods of processing the data.
Whether the requested data is to be provided on a mandatory or voluntary basis.
The consequences of a failure to reply.
The entities or categories of entities to whom the data may be passed on or who may hold the data in their capacity as data processors.
The scope of dissemination of the data
The data subject's legal rights.
The identification details of the data controller, the data controller's representative, if appointed, and data processor, if appointed.
No formalities or authorisation is required to transfer personal data within the borders of the EU, due to the free transfer principle.
Personal data can be transferred outside the EU, unless, among other things, the data subject is party to a contract and the transfer is necessary for the execution of that contract.
If a prospectus exemption applies, there is no legal requirement to translate plan documents into Italian. However, under the general principle of equal treatment of all potential investors (provided for in the Prospectus Directive), at least a summary of the main terms and conditions of the offering must be made available to employees in Italian or in other language commonly used in international finance (such as English).
Where an information document is required, it must be drawn up in Italian or in a language commonly used in international finance (such as English).
Where no prospectus exemption applies, the prospectus must be drafted in Italian when the offer of securities is carried out in Italy.
E-mail or online agreements
The subscription of shares through the internet or by other means of remote communication can be carried out only by a bank or a financial intermediary authorised to perform the relevant financial services in Italy (such as the placement or collection of orders), in accordance with the applicable regulations.
There are no witness or notarisation requirements.
Employee consent is required for the award or grant of shares. The consent must also cover any terms and conditions that have been included in the plan. The employee generally expresses consent by signing the subscription form.
Developments and reform
Financial Department of the Italian Government (Dipartimento delle Finanze, portaledell'AmministrazioneFinanziaria)
Description. Official website maintained and updated by the Financial Department of the Italian Government.
Italian Tax Authority website (Agenzia delle Entrate)
Description. Official website maintained and updated by the Revenue Agency of the Italian Government. The English language version is solely for guidance and is not binding.
Italian Social Security website (Istituto Nazionale della Previdenza Sociale) (INPS)
Description. Official website maintained and updated by the INPS.
Italian Stock Market Authority website (Commissione Nazionale per le Società e la Borsa) (Consob)
Description. Official website maintained and updated by the Italian Stock Market Authority. The English language version is solely for guidance and is not official.
Description. Official website maintained and updated by the Italian stock market management company responsible for the management and organisation of the Italian Stock Exchange. The English language version is solely for guidance and is not official.
Bank of Italy (Banca d'Italia)
Description. Official website maintained and updated by the of the Central Bank of the Republic of Italy. The English version is solely for guidance and is not official.
Luca Capone, Partner
Freshfields Bruckhaus Deringer LLP
Professional qualifications. Italy, Lawyer
Areas of practice. Employment; pensions and benefits; redundancies; restructuring processes; human resources aspects of mergers and acquisitions; drafting and negotiating company collective agreements and agency contracts; assisting in related litigation.
Non-professional qualifications. JD, Università Cattolica, Milan
Languages. Italian, English
Fabio Balza, Senior associate
Freshfields Bruckhaus Deringer LLP
Professional qualifications. Dottore Commercialista (chartered accountant admitted to practice in front of tax courts)
Areas of practice. Taxation of financial transactions; corporate reorganisations and restructurings; public and private M&A; real estate deals.
Non-professional qualifications. Business Administration, Università Commerciale – Luigi Bocconi, Milan
Languages. Italian, English