OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 3 March 2005 ( )

Case C-174/04

Commission of the European Communities

v

Italian Republic

(Failure to fulfil obligations – Free movement of capital – Shareholdings in privatised electricity and natural gas undertakings – Restrictions on voting rights on the acquisition of shares by State-controlled undertakings)





I – Introduction

1. In these infringement proceedings the Commission claims that Italy is in breach of the provisions of the Treaty on the free movement of capital. The proceedings relate to a provision of Italian legislation enacted in the course of liberalisation of undertakings in the electricity and natural gas sectors. It provides that the voting rights of holders of shares in privatised undertakings are limited to a maximum of 2% where the investors themselves are State controlled, enjoy a dominant position on their national market and are not publicly-quoted companies.

2. The legal issues raised in these proceedings are closely connected with the problem of the so-called ‘golden shares’, with which the Court has had occasion to concern itself on a number of occasions. ( ) In contrast to the cases already decided, however, the aim of the Italian legislation at issue is not primarily to ensure that the particular influence exerted by the (Italian) State on national energy supply companies is maintained following their privatisation. The intention is rather to prevent State-controlled companies from once again acquiring influence over the electricity and natural gas undertakings that have just been privatised. The background to this legislation seems to have been the fear, in particular, of companies still controlled by the French State, namely Électricité de France (EDF) und Gaz de France (GDF), penetrating the Italian market. ( )

II – Legal framework

A – Community law

3. Under Article 56(1) EC, ‘all restrictions on the movement of capital between Member States … [are] prohibited’.

4. The Italian Government refers in its defence to certain provisions contained in Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity (‘Directive 96/92’ ( )) excerpts from which are set out below.

5. Article 3(1) of Directive 96/92 reads:

‘Member States shall ensure, on the basis of their institutional organisation and with due regard for the principle of subsidiarity, that, without prejudice to paragraph 2, electricity undertakings are operated in accordance with the principles of this Directive with a view to achieving a competitive market in electricity, and shall not discriminate between these undertakings as regards either rights or obligations…’

6. Article 19(5) of Directive 96/92 contains a so-called ‘reciprocity clause’:

‘To avoid imbalance in the opening of electricity markets during the period referred to in Article 26:

(a) contracts for the supply of electricity under the provisions of Articles 17 and 18 with an eligible customer in the system of another Member State shall not be prohibited if the customer is considered as eligible in both systems involved;

(b) in cases where transactions as described in subparagraph (a) are refused because of the customer being eligible only in one of the two systems, the Commission may oblige, taking into account the situation in the market and the common interest, the refusing party to execute the requested electricity supply at the request of the Member State where the eligible customer is located.’

7. Lastly, Article 22 of Directive 96/92 provides as follows:

‘Member States shall create appropriate and efficient mechanisms for regulation, control and transparency so as to avoid any abuse of a dominant position, in particular to the detriment of consumers, and any predatory behaviour. These mechanisms shall take account of the provisions of the Treaty, and in particular Article 86 thereof.’

8. Directive 98/30/EC of the European Parliament and of the Council of 22 June 1998 concerning common rules for the internal market in natural gas ( ) (‘Directive 98/30’), to which the Italian Government also refers, contains provisions that are essentially the same.

B – The Italian provision at issue

9. Article 1(1) and (2) of Decree-Law No 192 of 25 May 2001, converted into Law No 301 of 20 July 2001, entitled ‘Urgent provisions to ensure the liberalisation and privatisation of specific public service sectors’ ( ) (‘Decree-Law No 192’) provides:

‘Until completion, within the European Union, of a market wholly open to competition in the electricity and gas sectors, with a view to safeguarding the processes of liberalisation and privatisation that are under way, in the case of legal persons controlled directly or indirectly by a State or by other public authorities and enjoying a dominant position in their domestic markets and not quoted on regulated financial markets, which acquire, directly or indirectly, or through an intermediary, including by means of a future or deferred public offer, holdings in excess of 2% in the capital of companies operating in the abovementioned sectors, directly or through companies controlled by or associated with them, the grant or the transfer of authorisation or concession measures provided for by Legislative Decrees No 79 of 16 March 1999 on electrical energy and No 164 of 23 May 2000 on the internal market in natural gas shall be subject to the conditions set out in paragraph 2. The limit of 2% shall apply to the legal person itself and to the group to which it belongs, being deemed to be the person, whether or not in the form of a company, which exercises control, the controlled companies and those subject to joint control, and related companies. The limit shall also apply to legal persons who, directly or indirectly, including through controlled, linked or fiduciary companies or through intermediaries, enter into, with or without third parties, agreements relating to the exercise of voting rights or agreements or pacts between shareholders.

If the limit referred to in paragraph 1 is exceeded, from the time of the grant or transfer of the authorisations or concessions referred to in paragraph 1, the voting rights attaching to the shares in excess of that limit shall be automatically suspended and shall not be taken into account in the quorum of deliberative meetings. Future or deferred acquisition or subscription rights shall likewise not be exercisable.’

III – Pre-litigation procedure and forms of order sought

10. In a letter of formal notice of 23 October 2002 the Commission claimed that Article 1 of Decree-Law No 192 infringed Article 56 EC. The Italian Government submitted its observations in a letter of 12 March 2003. In that letter it conceded that an obstruction to the free movement of capital existed but said that the legislation was the only way to ensure that freedom of competition was maintained.

11. On 11 July 2003, the Commission sent a reasoned opinion to the Italian Republic giving it a period of two months in which to terminate the infringement of the Treaty provisions. The Italian Government did not respond. The Commission therefore instituted legal proceedings under Article 226 EC on 13 April 2004. It claims that the Court should:

1. declare that Decree-Law No 192 of 25 May 2001, converted into Law No 301 of 20 July 2001 entitled ‘Urgent provisions to ensure the liberalisation and privatisation of specific public service sectors’ is incompatible with Article 56 of the EC Treaty in so far as it automatically suspends the voting rights attached to shareholdings exceeding 2% of the share capital of companies in the electricity and natural gas sectors;

2. order the Italian Republic to pay the costs.

12. There has not been a hearing.

IV – Arguments of the parties

13. In the opinion of the Commission, the legislation at issue obstructs the free movement of capital. Article 56 EC prohibits not only discrimination but also other restrictions on the movement of capital. State undertakings are permitted to rely on this principle in the same way as private undertakings. The suspension of voting rights where shareholdings exceed 2% is a disincentive to a particular category of investors wishing to acquire shares, namely State-controlled undertakings, since such shareholders could not exercise influence over the company’s decision-making in a manner commensurate with the actual size of their holdings.

14. The Italian Government’s response refers to the imbalance in the transposition of Directives 96/92 and 98/30, which the Commission and the European Council have themselves acknowledged. ( ) Because of the differing levels of liberalisation within the Member States, there is a risk of State monopolies still in existence playing an active role in the liberalised markets of other Member States. The reciprocity provisions in Article 19 of Directive 96/92 and in Article 19 of Directive 98/30 could not prevent this from happening. In these circumstances and in accordance with the principle of subsidiarity, the Member States have to take action to ensure that the liberalisation objectives are not jeopardised.

15. Restrictions on voting rights are an appropriate procedure and compatible in principle with the free movement of capital. There is also other legislation of this kind in Italy in the form of sanctions in the monitoring of the stock exchange and financial sectors. ( )

16. The Italian legislature is therefore pursuing the ‘European’ interests promulgated by the internal market directives on electricity and natural gas and not just its own national interests. Under Articles 3 and 22 of both Directives, the Member States are obliged to ensure that supply undertakings are operated in accordance with competition rules. It is also recognised that Member States are entitled to take measures to prevent an abuse of rights under the EC Treaty. ( )

17. This case is precisely the reverse of the situation in the ‘golden shares’ judgments. The effect of the golden shares was to maintain State influence and prevent liberalisation. In the present case, however, the situation is reversed and the influence of the State is being excluded. Hence, the criteria laid down by the Court in those judgments do not apply.

18. Finally, the legislation is only temporary until such time as a fully liberalised internal market is achieved and is confined to essentials. It is therefore sufficient for an undertaking to be quoted on a stock exchange for it no longer to be subject to the restriction.

19. The Commission contends, however, that even in the event of imbalances in the creation of the internal market the Member States are not permitted to take unilateral measures that violate fundamental freedoms. Italy has not presented any cogent reasons concerning security of supply that would justify the legislation in question. The Italian Government cannot cite realisation of the objectives of the internal market directives, since they do not relate to the acquisition of shares in electricity or natural gas undertakings. Furthermore, the European legislature has responded to the disparities in liberalisation by adopting new directives on the internal markets. ( ) It is also the duty of the Commission to take proceedings against any infringements of competition rules.

V – Law

A – Scope of application of the free movement of capital

20. Decree-Law No 192 restricts the exercise of voting rights by certain public undertakings when they take shares in Italian energy supply companies. The legislation therefore falls within the material scope of application of the free movement of capital under Article 56 EC.

21. As the Court has established with reference to points I and III in the Nomenclature set out in Annex I of Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty, ( ) direct investments in the form of participation in an undertaking by means of a shareholding or the acquisition of securities constitute capital movements for the purposes of Article 56 EC. ( )

22. Direct investments, that is to say shareholdings that enable the investor to play a role in the management and control of a company, are protected at the same time by freedom of establishment. However, the Commission’s complaint in these proceedings is confined to the infringement of Article 56 EC. ( )

23. Application of the principle of free movement of capital is not precluded because only public undertakings are affected by Decree-Law No 192. Admittedly, the fundamental freedoms enshrined in the EC Treaty, including Article 56 EC, encompass both obligations and prohibitions directed at the Member States. However, this does not deprive State-controlled undertakings of the right to rely upon them in the course of their economic activity as the beneficiaries of fundamental freedoms. In the circumstances of this case, where a public undertaking is being obstructed in the exercise of its fundamental freedoms by measures taken by another Member State, the beneficiary and the party under the obligation are not, in any event, one and the same. Indeed, a public undertaking is in a similar position to that of a private undertaking.

24. The neutrality of the EC Treaty with regard to rules governing the system of property ownership in the Member States, which is based on Article 295 EC, would also no longer be safeguarded if the benefit of fundamental freedoms were to be afforded only to private undertakings. The EC Treaty would then indirectly compel the privatisation of State undertakings so as to enable the fundamental freedoms to be enjoyed by them as well.

25. Finally, it is apparent from Article 86(1) EC that the Member States must not afford preferential treatment to public undertakings contrary to the rules contained in the EC Treaty. The other side of the coin is that public undertakings may also not be disadvantaged by not being allowed to rely on the fundamental freedoms.

B – Restrictions on the movement of capital

26. Any measure that hampers or acts as a disincentive to the cross-border transfer of capital and is therefore liable to prevent investors from taking such action constitutes a restriction on the free movement of capital. ( ) The concept of restrictions on the free movement of capital corresponds in this context to the concept of restrictions developed by the Court of Justice in the field of the other fundamental freedoms, particularly the free movement of goods. ( )

27. Admittedly, the legislation at issue does not prohibit the acquisition of such holdings. However, it does restrict the exercise of rights accruing to the investor as a shareholder in the company concerned. It therefore makes the investment less attractive to the particular group of public undertakings concerned and could stop them from making cross-border investments.

28. Although Italy does not dispute the restrictive nature of Decree-Law No 192, it stresses that its legislation applies to both national and foreign investors without distinction.

29. In the last two judgments relating to golden shares, the Court stated:

‘In this instance, although the relevant restrictions on investment operations apply without distinction to both residents and non-residents, it must none the less be held that they affect the position of a person acquiring a shareholding as such and are thus liable to deter investors from other Member States from making such investments and, consequently, affect access to the market’. ( )

30. If access to the market is made more difficult, which must also be held to be the case here, this will favour those economic operators already present in the market. If one assumes that these will generally be nationals, whilst the undertakings endeavouring to gain access to the market will for the most part have their places of establishment in other Member States, restrictions on access to markets will frequently constitute indirect discrimination.

31. In the present case, there is also the fact that since the privatisation of ENEL and ENI there have been no undertakings in Italy which satisfy the legislative criteria (dominant position in the electricity or natural gas supply sector, State-controlled and not quoted on a stock exchange). In reality, therefore, the legislation affects only undertakings from other Member States. The claim of the Italian Government that Decree-Law No 192 applies without distinction to both national and foreign undertakings is not therefore true in practice.

C – Justification for the restriction

32. In the judgments in Case C-483/99 Commission v France and Case C‑503/99 Commission v Belgium, ( ) the Court laid down the following conditions that have to be fulfilled to justify restrictions on the free movement of capital:

‘The free movement of capital, as a fundamental principle of the Treaty, may be restricted only by national rules which are justified by reasons referred to in Article [58(1) EC] or by overriding requirements of the general interest and which are applicable to all persons and undertakings pursuing an activity in the territory of the host Member State. Furthermore, in order to be so justified, the national legislation must be suitable for securing the objective which it pursues and must not go beyond what is necessary in order to attain it, so as to accord with the principle of proportionality.’

33. On the basis of this criterion, there can be no justification for the legislation at issue because, as has been established, it truly affects only undertakings from other Member States and not Italian undertakings.

34. In judgments on tax legislation affecting the free movement of capital, the Court has also expressed itself as follows:

‘Case-law shows that, for national tax legislation … to be capable of being regarded as compatible with the Treaty provisions on the free movement of capital, the difference in treatment must concern situations which are not objectively comparable or be justified by overriding reasons in the general interest, such as the need to safeguard the cohesion of the tax system, the fight against tax avoidance and the effectiveness of fiscal supervision …’. ( )

In certain circumstances, therefore, it would seem possible, at least in tax law, for different treatment of the same facts to be justified.

35. There is no need to decide whether that formulation provides the basis of a justification notwithstanding the differentiation between various groups of undertakings in the present case, because justification is precluded on other grounds.

36. It is doubtful, in particular, whether the aims pursued by Decree-Law No 192 can be accepted as overriding reasons in the general interest which would justify a restriction on the free movement of capital.

37. The Italian Government relies on the argument that the purpose of Decree-Law No 192 was to realise the objectives of Directives 96/92 and 98/30 regarding the internal market by protecting privatised Italian undertakings from being taken over by State undertakings. It therefore assumes that the aim of the directives was also to privatise energy supply undertakings. However, this is not correct.

38. The internal market directives make provision for the liberalisation of markets in such a way that the legal monopoly enjoyed by supply undertakings is withdrawn and national markets are gradually opened up to other providers. In addition, the undertakings’ various areas of activity, for example the production of electricity and the operation of networks, are to be broken up and third-party access to the networks is to be assured without discrimination. However, the directives do not oblige the Member States to privatise State undertakings in the energy supply sector. Indeed, there are even indications that the directives proceed on the basis that public undertakings will continue to exist. They provide, for instance, that undertakings are to draw up and publish their annual accounts whatever their system of ownership or legal form. ( ) To put it in a nutshell: the directives require liberalisation, not privatisation.

39. The Italian Government also points out that considerable differences between Member States have unexpectedly occurred in the course of opening up the markets. ( ) It claims, with reference to the principle of subsidiarity and Articles 3 and 22 of both of the directives, that the national legislature is called upon to make temporary corrections to those undesirable developments. However, that argument is also mistaken.

40. It should be stated, first, that when drawing up the directives the Community legislature took certain differences in the opening up of markets into account by dividing the liberalisation processes for the internal market in electricity and natural gas into various stages and allowing for transitional periods. If serious distortions to the internal market should arise as a result of the way in which the directives were formulated, it is for the Community to remedy the situation by amending the directives.

41. This is precisely what the Community has done. A good year or so after the expiry of the transitional period for Directive 96/92 and even before the expiry of the transitional period for Directive 98/30, the Commission submitted its proposals for new legislation in both sectors, the purpose of which was inter alia to expedite and therefore standardise the opening up of the markets. ( ) The resultant Directives ( ) adopted in 2003 were to be transposed by 1 July 2004. In any event, a Member State is not permitted to respond to distortions in the internal market by way of unilateral measures that obstruct the free movement of capital. ( ) Not even the principle of subsidiarity can ever justify national measures in breach of the fundamental freedoms. ( )

42. Admittedly, it might be true to say that until such time as the markets are fully opened up – even if this should be expedited by amendments to the directives – competition could be adversely affected. This means that an undertaking that holds a dominant position in a State in which the market is only slightly opened up might make higher profits than undertakings in a market that is more open to competition. These profits could be used to invest in undertakings in other Member States, thereby strengthening the position of the former undertaking in the internal market.

43. The reciprocity provisions in Directives 96/92 and 98/30 do not actually prevent this. They merely preclude an undertaking in such a protected position from supplying eligible customers in another Member State even though the corresponding group of customers in the home market does not yet have freedom of choice of supplier.

44. However, the absence of other safeguards in Directives 96/92 and 98/30 does not justify the national legislature taking unilateral measures to hinder the acquisition of such holdings in contravention of Article 56 EC. Rather, it is for the Commission alone to examine on the basis of the EC Merger Regulation ( ) whether the acquisition of a shareholding is compatible with the common market where the transaction constitutes a merger within the meaning of that regulation and has Community-wide significance. The Member States can state their interests in the procedure before the Commission. ( ) In the absence of a merger of Community-wide significance, it is for the national competition authorities to take action.

45. If there should be no merger within the meaning of the EC Merger Regulation, it is also possible that Article 82 EC might apply in conjunction with Article 86 EC; here too (depending on the facts) the Commission or the national competition authorities would again have jurisdiction.

46. No competence on the part of the Member States that differs from this general allocation of competence in competition law can be inferred from Articles 3 and 22 of Directives 96/92 and 98/30. These provisions simply oblige the Member States to exercise effective supervision over the energy supply undertakings operating in their territory and make it clear that the same conditions must apply to all operators in the national markets concerned. They do not, however, empower the Member States to prevent State undertakings from other Member States taking holdings in their national undertakings by adopting legislation.

47. Nor can such obstructions to the free movement of capital be justified in reliance upon Article 295 EC, as already established by the Court in the ‘golden share’ judgments. ( ) Whereas the State in those proceedings was affected with regard to its position as holder of a (golden) share, in the present case there is no such connection with the system of property ownership. By deterring certain investors, the Italian legislature is playing an active role in the structure of shareholdings in energy supply undertakings simply because of its own privatisation policy.

48. The interim conclusion must therefore be that Italy has not proven any interests that could be considered overriding reasons in the general interest. The restriction on the free movement of capital by Decree-Law No 192 is therefore unjustified.

49. Even assuming, contrary to the above, that because of the problems caused by the differing extent to which markets are opened up the Member States were to be permitted to take temporary unilateral measures, the provisions of Decree-Law No 192 are not, in any event, likely to provide an appropriate remedy in these circumstances. They are directed only at State undertakings and not at private undertakings. Because of lack of liberalisation on their domestic markets, the latter could still hold a protected dominant position making it easier for them to engage in cross-border expansion. Although, from the competition point of view, the positions of private and State undertakings should not be judged differently, Decree-Law No 192 does not extend to private undertakings.

50. This shows that the Italian legislature was not really concerned to ‘make good’ shortcomings in the directives but was aiming to influence access to national energy markets on the part of certain investors. That might well satisfy the aims of national privatisation policy. However, it has nothing at all to do with the objectives of the directives on the internal market in electricity and natural gas. Even though, in principle, there is much in favour of leaving the supply of energy to private undertakings, the privatisation of this sector in one Member State does not justify the de facto exclusion of State undertakings from another Member State from the acquisition of significant shareholdings in national undertakings in contravention of the rules on the free movement of capital.

51. To summarise, therefore, it is established that the Italian Government has not submitted any overriding reasons in the general interest to justify the restriction on the free movement of capital. Since no permissible aim is therefore being pursued it is not necessary to examine further whether restrictions on voting rights per se constitute an acceptable procedure or whether the legislation conforms with the principle of proportionality.

VI – Costs

52. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission applied for costs and the Italian Republic has been unsuccessful, the latter must be ordered to pay the costs.

VII – Conclusion

53. In the light of the foregoing I propose that the Court of Justice should:

(1) Declare that, by enacting Article 1 of Decree-Law No 192 of 25 May 2001, converted into Law No 301 of 20 July 2001, entitled ‘Urgent provisions to ensure the liberalisation and privatisation of specific public service sectors’, which provides for the automatic suspension of voting rights attaching to shareholdings exceeding the threshold of 2% of the share capital of supply companies in the electricity and gas sectors, in so far as the owners of those shareholdings are undertakings that are State-controlled, that enjoy a dominant position on their national market in those sectors and are not quoted on a stock exchange, the Italian Republic has obstructed the free movement of capital and failed to fulfil its obligations under Article 56 EC.

(2) Order the Italian Republic to pay the costs.