Brussels, 20 November 2009
Free movement of capital: Commission calls on Italy to apply Court of Justice ruling on special powers in privatised companies
The European Commission has decided to remind Italy of its obligation to comply with a Court of Justice ruling of 26 March 2009. This ruling found that by virtue of the legislation that lays down the criteria for the exercise of special powers in privatised companies referred to in Article 2 of decree-law 332/1994 operating, among others, in the telecommunications and energy sectors, Italy had failed to fulfil its obligations under EC Treaty rules on the free movement of capital (Article 56) and the right of establishment (Article 43). The request for information on Italy’s compliance with the Court ruling takes the form of a ‘letter of formal notice’ under EC Treaty infringement procedures related to compliance with Court of Justice rulings (Article 228).
In its ruling of 26 March 2009 in case C-326/07, the Court of Justice found that, by adopting the provisions contained in Article 1(2), of the Decree of the President of the Council of Ministers of 10 June 2004 defining the criteria for the exercise of the special powers referred to in Article 2 of Decree-Law 332/1994, Italy had failed to fulfil its obligations under EC Treaty rules on the free movement of capital and the right of establishment. These provisions lay down the criteria for the exercise of State powers to oppose the acquisition of shareholdings and the conclusion of pacts by shareholders representing a certain proportion of voting rights provided for in Article 2(1)(a) and (b) of Decree-Law 332/1994 as well as for the power to veto the management decisions specified in Article 2(1)(c) of the same Decree-Law.
The Court acknowledged that the criteria at issue apply to common interests such as the minimum supply of energy resources and goods essential to the public, which may justify certain restrictions on the exercise of fundamental principles. However, it considered that they were formulated in too general and imprecise manner to enable interested parties to anticipate the specific objective circumstances in which those powers are to be exercised and thus give the authorities excessively wide discretion. Moreover, it found that the lack of any connection between the criteria and the powers to oppose the acquisition of shareholdings and the conclusion of pacts by shareholders increased the uncertainty in which those powers are to be exercised.
In as far as the provisions at issue apply to the special powers of opposition the Court found that Italy had failed to fulfil its obligations under Articles 43 and 56 of the Treaty, while in as far as they apply the power to veto certain management decisions, it had failed to fulfil Article 43.
Following the ruling, the Italian authorities informed the Commission that they were examining possible solutions in order to comply with the ruling. However, as the Commission has not yet received any information about the measures taken in this respect the Commission has decided to send the authorities a letter of formal notice requesting further information.
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