BRUSSELS – Golden share goodbye. The precious antiscalata shield that protects the former state-owned giant Eni, Enel, Finmeccanica and Snam Rete Gas is destined to disappear once and for all. A problem that also concerns that Telecom is now private, but where the rules of the Statute, the Commission says, fall into this area. We are in times of serious crisis, with Italy at risk of default and privatization – is the diktat – must be completed as soon as possible, with no obstacles whatsoever. So get to Mario Monti in Brussels just installed an ultimatum: either it will be changed to the Italian law on special powers, or Italy will be referred to the EU Court of Justice within a month. Since 2009 the European judges have already vindicated once the Commission, now Italy would risk a fine. And have a lot of money: last week the Internal Market Commissioner Michel Barnier has proposed for Germany, because of the so-called “Lex Volkswagen” (the power of veto held by the Land of Lower Saxony in the automotive giant) a fine of 31,114.72 per day from the first sentence of the Court (23 October 2007) until the day of change in the law.
In Brussels, swear that the coincidence is purely accidental, and that the decision of the referral came after a lengthy procedure. It ‘probably is, but it remains that the economy is very special, and Mario Monti, explaining in Brussels, he will swear that as soon as possible to correct the legislation, and that is why the Commission has granted a month of waiting before the actual referral. The Commission alleges that the Italian legislation the clause – inserted in the statutes of the aforementioned companies (except Snam Rete Gas) – according to which the State may be granted special powers to safeguard ‘fundamental interests. ” A Barnier did not especially like the veto power of the Treasury on the possible acquisition of securities of companies across the threshold of 5% of voting rights, shareholder agreements on (always above 5%) and some business decisions on mergers and splits. So he gets angry with the EU legislation establishing special rights, and not with the fact that the State may have a quota, which is his right hand as an investor as another.
It’s not that the golden share or otherwise special rights are always forbidden, but explain to the Commission, they must be very detailed and well motivated. It is not the case with the Italian legislation. Not surprisingly, the first sentence ever ever issued by the Court of Justice EU for a case of golden shares, which dates back to 2000, it was against Italy, and concerned, guardacaso, the privatization of ENI and Telecom Italy. That, however, invalidating the current situation, is the ruling of March 26, 2009, which condemned Italy, giving reason to the Commission, not so much for the principle itself of the special rights, but because the legislation in force, the judges write EU in the sentence “does not contain details of the circumstances in which the criteria for the exercise of veto power can be applied,” so that “investors do not know when the power of veto may be applicable and the criteria it lays down are not, therefore, based on conditions objective and verifiable. ” Two key principles are violated, so the internal market: the right of free establishment and free movement of capital.
In fact, explain to the Commission, the EU court in Brussels ruled in favor of the greater part of the appeals against various forms of golden shares in several states. And that is why this instrument of veto is gradually disappearing. From the judgments, in fact, it is clear what the stakes are rigorous in order to introduce the special powers: those ‘must be applied without discrimination to be justified by overriding requirements of general interest, must be suitable to ensure the achievement of’ objective which they pursue and not go beyond what is strictly necessary to achieve it. ” In general, explain again to the Commission, it is seen that it is almost never recognized the right of veto for energy companies, only in very rare cases in companies specializing in the defense. In the case of large formerly state-owned Italian companies, none of the criteria set by the EU court, according to the Commission, is respected. “The Commission – said in a statement – considers that the restrictions on acquisitions and agreements between the shareholders, subject to the procedure in question, are inadequate to protect the lens to protect the vital interests of the state. In addition, the criteria for the exercise of special powers are not sufficiently precise and could cause excessive discretion on the part of the state. ” Large international investors can start licking their chops.
Translation by Google Translate