IP/08/164
Brussels, 31 January 2008
Mergers: Commission opens infringement procedure against Spain for not lifting conditions imposed by CNE on acquisition of Endesa by Enel and Acciona
The European Commission has formally requested Spain to explain why it has not withdrawn the conditions imposed by the Spanish Energy Regulator (CNE), as modified by the decision of the Spanish Minister of Industry and Tourism of 19 October 2007. The Commission declared the conditions to be contrary to EU law in a decision adopted on 5 December 2007 under Article 21 of the EU Merger Regulation (see IP/07/1858). The request takes the form of a “letter of formal notice”, which is the first step of infringement proceedings under Article 226 of the EC Treaty. If there is no satisfactory reply within 15 working days, the Commission may issue a formal request to Spain to comply with its decision. This request would be in the form of a ‘reasoned opinion’, the second stage of infringement proceedings.
On the basis of the powers granted by Royal Decree-Law 4/2006, on 4 July 2007 CNE decided to submit the Enel/Acciona/Endesa operation to a number of conditions. This decision was adopted without prior communication to, or approval by, the Commission.
On 19 October 2007, and following an appeal lodged by Enel and Acciona against CNE's decision of 4 July, the Spanish Minister of Industry and Tourism adopted a decision modifying some of the conditions imposed by CNE in its decision of 4 July 2007 and withdrawing others.
On 5 December 2007, the Commission adopted a decision declaring that the CNE decision, as partially modified, breached Article 21 of the EU Merger Regulation because:
- the CNE took its decision without any prior communication to (and approval by) the Commission and
- Enel’s and Acciona's acquisition of joint control over Endesa was subjected to to a number of conditions that were contrary to the EC Treaty’s rules on the freedom of establishment and the free movement of capital (Articles 43 and 56 of the EC Treaty) and, partly, the free movement of goods (Articles 28 and 29 of the EC Treaty).
The Commission's
decision of 5th December 2007 required Spain to withdraw by 10
January 2008 the conditions imposed by CNE’s decision which had been
declared incompatible with EU law. To date the Spanish authorities have not
informed the Commission of any steps or measures taken in order to comply with
the 5th December decision.
General information on infringement
proceedings is available at:
http://ec.europa.eu/community_law/infringements/infringements_en.htm