Brussels, 5 December 2007
Mergers: Commission declares part of conditions imposed by Spain on Enel and Acciona to acquire Endesa incompatible with EU law and requires their withdrawal
The European Commission has decided that Spain has violated Article 21 of the EU Merger Regulation in that certain conditions imposed on Enel and Acciona for their acquisition of Endesa are incompatible with EC law and has requested their withdrawal by 10 January 2008. In particular the incompatible conditions concern: a) the obligation to maintain Endesa as an independent company, including its brand, and its decision-making centre in Spain, b) a limitation in Endesa's debt service ratio, c) a limitation with respect to Endesa's dividends distribution policy, d) the obligation for certain of Endesa's generation assets to purchase certain amounts of national coal and e) the obligation to keep the assets of the insular and non-mainland electricity systems within the Endesa Group. These conditions were imposed by the National Energy Commission ("CNE") in its decision of 4 July 2007 and partially modified by the Minister of Industry on 19 October 2007.
On the basis of powers granted by Royal Decree-Law 4/2006, the CNE decided on 4 July 2007 to submit the acquisition of the Spanish company Endesa S.A. by Enel Energy Europe S.r.l. (Italy) and Acciona S.A. to a number of conditions. These conditions, which, following an appeal lodged by Enel and Acciona, were partially modified by the Spanish Minister of Industry, Tourism and Trade on 19 October, were adopted without prior communication to, or approval by, the Commission.
Following an initial assessment, the Commission informed Spain on 21 September 2007 of its preliminary conclusion that some of these conditions violated the EC Treaty’s rules on free movement of capital (Article 56) and freedom of establishment (Article 43), and that one of these conditions also violated the rules on free movement of goods (Articles 28 and 29 EC), interfering with the Commission’s exclusive competence to decide on a concentration with Community dimension.
On 22 October the Commission received the reply of the Spanish authorities to its preliminary assessment.
Following the assessment of both the Spanish reply and the modifications made by the Spanish Minister of Industry, Tourism and Trade, the Commission has come to the conclusion that some of the conditions still violate Article 21 of the EU Merger Regulation and are incompatible with the rules on the free movement of capital, the freedom of establishment and the free movement of goods. The conditions, as modified, covered by today's decision are broadly comparable to a number of conditions imposed in the case of E.ON/Endesa and the Commission's assessment is also consistent with the approach in its decisions of 26 September and 20 December 2006 in that case( see IP/06/1265 and IP/06/1853).
Under Article 21 of the EC Merger Regulation, the Commission has exclusive competence to assess the competitive impact of concentrations with a Community 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:
Public security, plurality of media and prudential rules are interests that are recognised by the Merger Regulation as being legitimate, but specific national measures adopted on these grounds must still be proportionate and fully compatible with all aspects of Community law.
On 5 July 2007, the Commission approved under the EU Merger Regulation the acquisition of joint control of Endesa by Enel and Acciona (see IP/07/1023), as the operation would not significantly impede effective competition in the European Economic Area (EEA) or any substantial part of it.
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