Luxembourg, 07/06/2000 (Agence Europe) - In a recent decision on action initiated by the European Commission against Italy, the Court of Justice confirmed that the governments cannot retain certain special powers, such as the "Golden Share", when they privatise a previously nationalised company.
The Italian provisions challenged provided, in certain specific cases such as defence, transport, telecommunications, energy and public services, for the prime minister to be able to introduce "special powers" for the Treasury Minister, concerning: a) compulsory approval by this Minister for any acquisition exceeding 5% of the share capital; b) similar approval for pacts between shareholders who hold at least 5% of the voting rights; c) possible veto on deliberations relating to the winding up of the company, merger, the transfer of the head office to another country, etc. In addition, the Treasury Minister had the power to appoint an administrator, or several administrators, not exceeding one quarter of the members of the board of administration.
For the most part, the Court accepted the European Commission's argument whereby the "special powers" attributed to a minister represent an obstacle to the free movement of capital and the right of establishment. The compulsory prior authorisations attribute to the Treasury Minister a discretionary power that may be used in an arbitrary fashion.
In practical terms, the Italian government had partially introduced the "special powers" cited in the statutes of the ENI (petrol and natural gas), the STET (telephone) and Telecom Italia.
Italy had already done away with challenged provisions,
and Commission examines new provisions
During the process, the Italian government had pointed out to the Court that the provisions challenged by the European Commission had already been removed and that a decree from the prime minister to this effect had been forwarded to the Commission in February. The Court had, however, noted that it could not take into account changes that had taken place after the deadlines set by the Commission in its "reasoned opinion" noting infringement. The Court had to give its opinion on the infringement as it existed at that time.
The Commission, for its part, acknowledged having received the new Italian regulation but has not yet given its opinion on the substance of the issue. It must carry out a detailed examination of this in the light of the Court's decision, which is naturally of a general character valid for all provisions of the same kind, in Italy or elsewhere.