Brussels, 3 May 2006
Free movement of capital: Commission opens infringement proceedings against Spain regarding law amending functions of Spanish electricity and gas regulator
The European Commission is formally requesting Spain to provide information concerning the new legislation that extends the powers of the Comisión Nacional de Energía (CNE), the Spanish electricity and gas regulator. The legislation requires the authorisation of the CNE for the acquisition of over 10% of share capital, or any other percentage resulting in significant influence, in companies engaged in regulated activities or activities subject to special administrative control. It also requires such authorisation for the acquisition of the assets needed to carry out these activities. The Commission is concerned that these provisions 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 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 two months to the letter of formal notice, the Commission may decide to issue a formal request to Spain to revise the legislation in question. This request would be in the form of a ‘reasoned opinion’, the second stage of infringement proceedings.
The Spanish law in question is Royal Decree-Law 4/2006 of 24 February, which amends the functions of the Comisión Nacional de Energía, the Spanish electricity and gas regulator. This law includes provisions that require authorisation from the CNE for the acquisition of over 10% of share capital, or any other percentage giving significance influence, in a company that engages, directly or indirectly, in regulated activities or activities subject to special administrative control, and for the direct acquisition of assets to carry out these activities. The law includes the reasons on the basis of which the CNE may grant or refuse such acquisitions: the existence of risks in relation to the above activities; the inability to perform them as a consequence of other activities carried out by the acquiring or acquired company; and protection of the general interest and reasons of public security. However, in the Commission's view these reasons are vague and indeterminate and as a result give the authorities wide discretionary powers.
In conclusion, the Commission takes the view that the special powers provided for by the Spanish law may unduly restrict the freedom of capital movement (Art 56) and the right of establishment (Art 43).
The latest information on infringement proceedings concerning all Member States is available at: