CELEX: C2007/247/05
Language: en
Date: 2007-10-20 00:00:00
Title: Case C-326/07: Action brought on 13 July 2007 — Commission of the European Communities v Italian Republic

20.10.2007   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 247/3
            
         Action brought on 13 July 2007 — Commission of the European Communities v Italian Republic
   (Case C-326/07)
   (2007/C 247/05)
   Language of the case: Italian
   Parties
   
      Applicant: Commission of the European Communities (represented by: L. Pignatoro-Nolin and H. Støvlbæk, Agents)
   
      Defendant: Italian Republic
   Form of order sought
   
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               declare that, by including provisions such as those contained in Article 1(2) of the decree of the President of the Council of Ministers of 10 June 2004 on the definition of criteria for the exercise of the special powers referred to in Article 2 of Decree-Law No 332 of 31 May 1994, converted into law with amendments by Law No 474 of 30 July 1994, and amended by Article 4(227)(a), (b) and (c) of Finance Law No 350/2004, the Italian Republic has failed to fulfil its obligations under Articles 43 and 56 of the EC Treaty;
            
         
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               order the Italian Republic to pay the costs.
            
         Pleas in law and main arguments
   The Commission takes the view that the criteria referred to by Article 1(2) of the Decree of 10 June 2004 for the exercise of special powers, laid down by Article 4(227)(a), (b) and (c) of Law No 350/2004, are not precise or specific enough to enable an investor in another Member State to know when the special powers under Article 4(227)(a), (b) and (c) of Law No 350/2004 will be used.
   The special powers under Article 4(227)(a), (b) and (c) of Law No 350/2004 are: to prevent investors from acquiring significant shareholdings representing at least 5 % of voting rights or a lower percentage fixed by the Ministry of Finance, to prevent the conclusion of contracts and agreements between members representing 5 % of voting rights or a lower percentage fixed by the Ministry of Finance and the power to veto the adoption of resolutions for the dissolving of companies, the transferring of shareholdings, for merger, demerger, transferring abroad of the company headquarters, or altering of company objects, criteria applicable to all the sectors mentioned in the first subparagraph of Article 4(227) of the Law (defence, transport, telecommunications, energy sources and other public services).
   In light of the Court's case-law (Case C-463/00 Commission v Spain [2003] ECR I-4581; Case C-483/99 Commission v France [2002] ECR I-4781; Case C-503/99 Commission v Belgium [2002] ECR I-4809, and Joined Cases C-282/04 and C-293/04 Commission v Netherlands [2006] ECR I-9141), the Commission considers therefore that the legislation in question goes beyond what is necessary in order to safeguard the public interests provided for by Article 1.2 of the Decree of 10 June 2004 and that it is contrary to both Article 56 EC and Article 43 EC. In the Commission's view, for the sectors thus regulated, such as energy, gas or telecommunications, the aim of protecting the State's vital interests may be attained by adopting less restrictive measures regulating those activities, such as Directive 2003/54/EC (1) and Directive 2003/55/EC (2) or Directive 2002/21/EC (3) and Directives 2002/19/EC (4), 2002/20/EC (5), 2002/22/CE (6) and 2002/58/EC (7). It is the Commission's opinion, furthermore, that those acts guarantee the safeguarding of national minimum provisions and that there is no causal link between the need to ensure power supplies, the provision of public services and the supervision of the ownership structure or of the management of the undertaking.
   
      (1)  OJ L 176, p. 37.
   
      (2)  OJ L 176, p. 57.
   
      (3)  OJ L 108, p. 33.
   
      (4)  OJ L 108, p. 7.
   
      (5)  OJ L 108, p. 21.
   
      (6)  OJ L 108, p. 51.
   
      (7)  OJ L 201, p. 37.