Brussels, 14 November 2006
Free movement of capital: Commission opens infringement proceedings against Italy regarding the new regime for motorway concession in Italy
In the context of the reform of motorway system of concessions in Italy and the proposed merger between Autostrade and Abertis, the Commission has today issued a letter of formal notice addressed to the Italian authorities for the possible violation of Treaty provisions regarding the free movement of capital and establishment. In particular, the Commission is concerned that the new system of motorway concessions may create uncertainty that could discourage investors. The lack of clearly stated policy objectives pursued by the provisions in question and the lack of justification of the measures taken may unduly introduce uncertainty on the upcoming renegotiation of existing concessions and, therefore, the new system may unduly restrict the free movement of capital and the right of establishment as enshrined in EU Treaty rules (Article 56 and 43 respectively). The restrictive effect of these provisions is enhanced by the threat of withdrawal of the existing concessions in the event that an agreement is not reached between the Italian authorities and the concessionaries. Separately, the Commission understands that provisions limiting the voting rights of construction companies participating in the operation of motorway concessions to 5% of the company's capital when appointing the directors of the board of the concessionaire and which may unduly restrict both fundamental freedoms, will be amended. The request will take the form of a letter of formal notice (the first stage of infringement proceedings provided for in Article 226 of the EC Treaty). If there is no satisfactory reply within 2 months to the letter of formal notice, the Commission may decide to issue a formal request to Italy (in the form of a so-called ‘reasoned opinion’, the second stage of infringement proceedings) to revise the legislation in question.
The Italian law in question is Decree-Law No 262 of 3 October 2006 "Urgent regulation on taxation and financial matters" and in particular, certain provisions of Article 12 concerning the “New discipline concerning the revision of fares on toll motorways and reinforcement of ruling power of ANAS”, the Italian motorway regulator.
Article 12 of the above Decree-Law includes provisions that change the motorway concession laws. It includes a limitation on voting rights to 5% of the company’s capital for construction groups in motorway companies when appointing directors and provisions for the renegotiation of all existing motorway concession contracts. With respect to the latter, Article 12(1) provides the dates in which the convenzione unica will replace existing licences for all operators and Article 12(2) the principles the new contracts must adhere to. Moreover, according to Article 12(6) and (7), should the concession-holder reject the new terms the concession is automatically withdrawn.
The Commission understands that the Italian government has introduced amendments to the above Decree-Law which withdraw the 5% voting cap. It welcomes this development and expects that the Italian Parliament will adopt it in due course.
However, with respect to the new concession regime, there is neither an indication of the policy objectives pursued by the provisions in questions nor a particular justification or imperative requirements in the general interest for the measures taken. This could hinder the implementation of the new provisions for the renegotiation of the existing concessions. Consequently, the Commission considers that the new rules do not give potential investors the specific, objective circumstances in which the renewal motorway concession will be granted or withdrawn with the result that such rules are liable to hinder or make less attractive the exercise of fundamental Treaty freedoms and must be regarded as contrary to the principle of legal certainty.
In conclusion, the Commission takes the view that the provisions of the Italian Decree-law No 262/2006, although applied in a non-discriminatory manner, are not justified and therefore may unduly restrict the freedom of capital movement (Art 56) and the right of establishment (Art 43).