Brussels, 09/07/2003 (Agence Europe) - On Wednesday, the European Commission decided to send Spain and Italy formal requests to comply with Community law with regard to the legislation that limits the voting rights on investment in the energy sector by state-owned companies. This legislation, adopted to counter the EDF offensive on the Spanish company Hidrocanábrico and Italian Montedison, are discriminatory and contrary to Article 56 of the Treaty on the free movement of capital, the Commission says. Italy and Spain have two months in which to respond to the Commission's arguments. "Should the authorities of the Member states concerned not take satisfactory steps to comply within two months of receiving the reasoned opinion, the Commission may decide to refer the cases to the EU's Court of Justice", the Commission recalls in a press release.
The Spanish Law of 29 December 1999 includes provisions that require the exercise of voting rights by public entities or undertakings of any kind owned or controlled by public entities, which directly or indirectly take control or acquire at least 3% of the equity or the voting rights in Spanish energy companies, to be subject to the prior authorisation of Spain's Council of Ministers. The Commission considers the legislation is discretionary as it does not specify the criteria for granting authorisation to take control.
Italy had adopted in July 2001 a law suspending the voting rights of state-owned companies that have acquired over 2% of the capital of companies operating in the Italian electricity and gas sector. This suspension would be automatic until a fully competitive market in these sectors is achieved. The decree, then the Italian law, were adopted hastily by the Italian government during summer 2001 to counter the takeover of Montedison by EDF, which had then acquired 20% of the capital of the Italian energy company. According to the Commission, the Italian law responds to an imperative requirement of general interest as it could be admitted by the Treaty. The Commission stresses that Article 295 of the Treaty in no way prejudges the public or private ownership regime in Member States but that the Member States are not exempted from having to respect the rules governing the free movement of capital.
The Commission's decision is fuelled by the rulings of the Court of Justice which, on 4 June 2002, has specified, in the Portuguese, Belgian and French cases, the conditions in which a State can hold special power in a privatised company (the specific "golden shares"). According to this jurisprudence, derogation from market laws is possible for security or general interest reasons, principles that are respected, the Court says, only in the Belgian case.
According to information appearing in the Spanish newspaper "Expansión", the Spanish State is negotiating with the Commission on a change of Spanish golden shares, which would follow the Belgian model of a posteriori administrative authorisation.