EN Official Journal of the European Union CE 84/55

(2004/C 84 E/0062)

WRITTEN QUESTION E-3191/03

by Roberta Angelilli (UEN) to the Commission

(28 October 2003)

Subject: Alleged violation of Community company law by Telecom Italia in the Telekom Serbia affair

In addition to having been shown to be extremely prejudicial to Italy, Telecom Italia's acquisition of a 29 % stake in Telekom Serbia would seem to have been carried out in violation of EU company law with regard to the responsibility of directors vis-à-vis shareholders in joint stock companies. The board of directors, which was responsible for the acquisition, is in fact guilty of having concluded harmful negotiations, while being fully aware of having caused serious losses and of having failed to take the necessary steps to assess such losses correctly. The shares were bought at a price much higher than their actual value and with no consideration for the risk involved in investing in a country with a very low average income (EUR 1 900), a very high inflation rate and a non-convertible currency, and which is one of the 21 countries in which there is a danger of instability. A 16 % penalty and a commission of around EUR 15 000 were paid to the British intermediary. The shares themselves were sold two years later, devalued by more than 50 % and representing a loss to the Italian treasury evaluated at 99,1 % of the purchase price, i.e. EUR 450 million. One of the many anomalies in this transaction is the fact that the chairman and assistant director of the Stet (run by Telecom Italia), who were formerly in charge, firmly opposed the transaction. Preference was given to private trading over the normal procurement contract procedure. The matter was not treated with all the necessary diligence to be expected in such a major transaction. A task force inside Telecom Italia concluded the negotiations instead of Stet International, the parent company.

In the light of the above considerations and the principles on which the twelve company law directives are based, as well as Article 14 of the proposal for a fifth directive (1) and the Commission communication (2) on modernising company law, will the Commission state:

1. whether it does not consider that the transaction described above constitutes an infringement of the principles and standards relating to the responsibility of directors in terms of transparency and protection of shareholders' rights?

2. whether it does not consider that, in this particular case, the Italian Government of that period bears some responsibility?

3. whether it has conducted a thorough investigation into this case, or intends to do so, within the limits of its powers?

Answer given by Mr Bolkestein on behalf of the Commission

(3 December 2003)

In answer to the three questions raised by the Honourable Member, the Commission would like to make the following remarks:

— The existing company law directives, to which the Honourable Member refers, contain very few provisions on liabilities or sanctions.

— The few provisions which do exist in this area deal, for the most part, with issues relating to the disclosure of certain information, particularly financial information (annual accounts and consolidated accounts). None of the details given in the question asked by the Honourable Member would necessarily lead to the conclusion that the transaction described infringes the provisions in the company law directives relating to the disclosure of certain information.

— Two company law directives contain provisions urging the Member States to at least lay down rules governing the civil liability of members of the administrative or management bodies in respect of misconduct on their part in preparing and implementing certain transactions, i.e. company mergers (third directive (3)) and the division of companies (sixth directive (4)). Since the transaction described by the Honourable Member was a simple acquisition, neither of these two directives is applicable to it.

— In 1972, the Commission presented a proposal for a fifth company law directive relating to the structure of public limited companies and the powers and obligations of their organs. Although it was discussed over many years and amended several times, no agreement could be reached on this proposal and it was eventually withdrawn by the Commission in December 2001.

— In view of the foregoing, it would appear that the existing company law directives contain no rules relating to the liability of administrators which would have been breached by the transaction described by the Honourable Member.

— Secondly, with regard to whether the Italian Government of that period bears some responsibility, the Commission would point out that it is not for it to comment on whether or not the government of a Member State bears political responsibility in a particular case.

— Finally, as regards the possibility of a thorough investigation into this case, the Commission can confirm that it has not conducted such an investigation, and has no intention of doing so, given that there is nothing in the information brought to its attention to suggest that there has been any breach of the Community rules on company law.

(1) COM(90)629, OJ C 7, 11.1.1991, p. 4.

(2) COM(2003)284.

(3) Third Council Directive 78/855/EEC of 9 October 1978 concerning mergers of public limited liability companies, OJ L 295, 20.10.1978.

(4) Sixth Council Directive 82/891/EEC of 17 December 1982 concerning the division of public limited liability companies, OJ L 378, 31.12.1982.