Luxembourg, 09/03/2005 (Agence Europe) - The Advocate General Juliane Kokott has ruled that Italy is in breach of the rules of the EC Treaty with the restrictions it has imposed on shareholders' voting rights when the shareholders are businesses under the State control of other Member States. She is targeting article 1 of the decree-law of 25 May 2001 (subsequently converted into a law), which provides “emergency provisions” to safeguard the liberalisation and privatisation processed of certain energy sectors, such as gas and electricity. One of these provisions infringes the rules of free movement of capital, she feels, stating that the Italian government has not presented pressing reasons of general interest justifying the restriction of the free movement of capital.
Article 1 of this law allows the voting rights of shareholders which are businesses under State control to be suspended automatically once they acquire over 2% of the capital of Italian energy companies. Juliane Kokott feels that “underlying this case is the fear that the French Electricité de France (EDF) and Gaz de France (GDF), which are still dominated by the French State, could penetrate the Italian market”. When the case was being heard, the Italian government referred to EDF's acquisition of stakes in Montedison as a “negative example”
The Advocate General draws a line between this case and the “golden shares” issue, on which the Court rules in 2002 and 2004. In these two cases, concerning Spain and the UK, which reserve control over certain companies, the Court ruled against these Member States, but recalled the principle that a certain influence on the part of the Member States can be justified within undertakings that were initially public and subsequently privatised and which are active in the provision of services in the public interest of strategic services.