Brussels, 16 October 2008
Free movement of capital: Commission closes infringement proceedings against Italy regarding new regime for motorway concessions
Following reforms in the Italian motorway sector, the European Commission has decided to close an infringement procedure against Italy concerning restrictions on the free movement of capital and on the freedom of establishment.
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. This provision included 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 when 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according to Article 12(6) and (7), should the concession-holder reject the new terms, the concession is automatically withdrawn.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 was of the opinion that the new system may unduly restrict the free movement of capital and the right of establishment (Article 56 and 43 EC Treaty respectively) of potential EU investors.
The Italian government amended the law in question during the conversion phase of the Decree-Law (Law No 286/2006) and finally with Law No 296 of 27 December 2006. However, these amendments did not address all the issues raised by the Commission in its letter of formal notice (IP/06/1561).
Following an exchange of administrative letters and meetings with the authorities, the Law in question was amended by Law No 101 of 6 June 2008 which converted into law the Decree-law No 59 of 8 April 2008. This new Law addresses the concerns of the Commission and also approves a number of renewed concession contracts, mutually agreed and already signed by ANAS and existing concessionaires. All concession contracts should now be equally treated under the new rules, in accordance with the principle of non-unilateral modification of the new sectoral arrangements. The Commission will monitor the transition to the "convenzione unica" of the remaining existing concessions and the implementation of this new legal framework.
The closure of this case is without prejudice to the ongoing procedures on the same topic relating to State Aid and transport policies as well as those in the field of public procurement.
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