IP/06/1418

Brussels, 18^th October 2006

Mergers: Commission sends preliminary assessment to Italy on measures to block Abertis-Autostrade merger

The European Commission has come to the preliminary conclusion that Italy has violated Article 21 of the EU Merger Regulation because of unjustified obstacles placed in the way of a merger between Abertis of Spain and Autostrade of Italy (both active in the management of toll motorways). This is a merger of a European dimension falling within the exclusive competence of the Commission under the EU Merger Regulation. In particular, the Commission has serious doubts about the compatibility with Article 21 of a binding opinion delivered by the Ministers of Infrastructures and of Economic Affairs on 4 August 2006 as well as of a decision adopted on 5 August 2006 by the public entity responsible for granting motorway concessions in Italy (ANAS), rejecting Autostrade’s application for authorisation to merge with Abertis. The Commission preliminary assessment is that it cannot consider at this stage that these measures aim at protecting legitimate interests compatible with the general principles and other provisions of Community law. The Commission approved the Abertis-Autostrade merger on 22^nd September 2006 (see IP/06/1244).

The Ministers’ opinion and ANAS’ rejection decision both refer to a concern that the entity resulting from the planned merger might not be able to properly carry out the investment required to maintain and improve the motorway network, and to comply with the necessary qualitative and security standards. However, the Commission’s preliminary assessment is that:

• the factual and legal basis for these generic concerns is not clearly defined
• the public interest that would be harmed is not clearly specified;
• any such public interest can be adequately protected under the terms of the existing motorway concession agreement and
• neither the measures nor the reasons for taking them have been communicated to the Commission for assessment under Article 21 of the Merger Regulation.

Therefore, the Commission cannot consider at this stage that these measures aim at protecting legitimate interests compatible with the general principles and other provisions of Community law.

The Italian authorities have been invited to express their views on the Commission’s preliminary assessment within 10 working days. If the Commission's preliminary assessment were confirmed, the Commission could adopt a decision declaring that Italy has violated Article 21 of the Merger Regulation and requiring Italy to ensure that ANAS’ decision and/or the Ministers’ opinion were withdrawn or declared to be inapplicable.

Background

Under Article 21 of the EU Merger Regulation, the Commission has exclusive competence to assess the competitive impact of concentrations with a European dimension. Member States cannot apply their national competition law to such operations. Moreover, Member States cannot adopt measures which could prohibit or prejudice (de jure or de facto) such concentrations unless the measures in question:

• protect interests other than competition and
• are necessary and proportionate to protect interests which are compatible with all aspects of Community law.

Public security, plurality of media and prudential rules are interests that are recognised by the Merger Regulation as being legitimate, but specific measures must still be proportionate and fully compatible with all aspects of Community law.

The European Commission approved on 22^nd September 2006 under the EU Merger Regulation the proposed merger of Abertis with Autostrade (see IP/06/1244). After examining the operation, the Commission concluded that the proposed transaction would not significantly impede effective competition in the European Economic Area (EEA) or any substantial part of it.