Event review

REVIEW: EU Law Panel at the International Graduate Legal Research Conference (IGLRC) 2014 at King’s College London, 14-15 April 2014

Florian Nitu

PhD Candidate, King’s College London

 

The European Union Law panel at the 8th edition of the IGLRC addressed the standards of regulation theme showing convincingly that EU norm generation remains as topical as always. It also becomes increasingly sensitive given the global recoup of the pluralist paradigm of law-making.

As Professor Alex Turk chairing the panel has stated at the outset, one way of approaching regulatory activities within the EU, from a standards’ perspective, would be to apply a balancing test to the normative process and its results, measuring comparatively the effects of regulations by reference to norm generation and enforcement. Under the proposed conceptual framework, the next logical step was to choose a number of interconnecting areas of regulation. For the event three typologies were selected.

The first one consisted of standards, which albeit properly enacted by the Member States, are rejected at the European Union level. Still, they are applied in practice given a blatant resistance to compliance. The ‘Golden Shares’ regulations were addressed as category-sample, with Jelena Ganza of King’s College London presenting ‘Resistance to Compliance: Is there a future for ‘Golden Shares’ within the EU’. The second one covered standards set in a collective regulatory process involving a number of different EU actors whose effort to harmonize conflicting interests appears to have yielded mixed results. Regulation of EU financial supervision was assumed to be the proper case study here, handled by Arien Van’t Hof of Erasmus University Rotterdam under the heading of ‘The institutional balance in EU financial supervision’. The third and final one dealt with the category of norms generated outside European Union administrative structures, in a transnational sphere, which are nonetheless embraced by the EU and its Member States. In this vein, Sabrina Wirtz of Maastricht University discussed the ‘EU risk regulation and its global standards: the case of pharmaceuticals’. All three perspectives have been explored insightfully by the speakers putting forward arguments of high interest and practical relevance.

On the resistance to compliance front and the case of ‘Golden Shares’ regulations, Jelena Ganza opened her presentation by defining the golden shares provisions as corporate control devices/special voting rights attached to named shares. They are issued for the benefit of minority shareholders, mainly former state-owned entities or public authorities, in relation to privatization projects. Although it may be argued that a first expression of the ‘Golden Shares’ concept may be found in the UK before, according to the panellist it is during the early-nineties that the idea took off in continental Europe. The ‘Golden Shares’ regulations have been fostered by the EU privatization wave involving mainly the utilities sector and other heavy industries, as well as by numerous public-to-private deals and, in general, by market liberalization programs, concluded in various South-Eastern Europe countries before and as a condition to their accession to the European Union.

According to Jelena Ganza’s research, in spite of their controversial nature and their clear conflict with the fundamental right to free movement of capital, the ‘Golden Shares’ regulations or at least their primary objectives subsist. Indeed, Member States refuse to comply with or try to circumvent the effects of no less than 15 judgments of the European Court of Justice adopted within infringement cases, starting with Commission v. Italy (C-58/99) to the recent Commission v Germany (C-95/12). It was also stressed out that enforcing the said judgments would affect not only the Member States concerned, but also their flagship corporations such as Telecom Italia, Enel, Volkswagen, Telefonica, etc.

She further discounted heavily the effects of the only judgment clearing the golden share-type regulation in Belgium [see Commission v. Belgium (C-503/99)], on the ground that the finding of the CJEU could not be further used as a concept clearance, because of the specifics of this case.

Picking up on audience questions regarding the indirect legality control of the regulations, through the domestic preliminary reference procedure, the panellist informed that to date there is no such judgment, due to lack of interest of the Member States to pursue such proceedings and the limited effects of the regulation over individuals/entities having standing to raise the EU illegality inquiry.

It was claimed that there should be more, since the change in the economic climate appears to be used by Member States as an opportunity to devise new non-compliance defences and to maintain the ’Golden Shares’ system in place or even replicate it. Theoretically, there have been attempts to pre-empt the freedom of capital movement by recourse to employment protection and social security values, Member States public policy stances and other state strategic interests.

Concluding, much remains to be seen on the Golden Shares regulation saga. In spite of the numerous infringement decisions, which Jelena thinks are fully justified as the free movement of capital right is the prevailing value in this tension of local and community interests, the Commission is unlikely, at least in the harsh economic times, to move more aggressively against non-compliant Member States.

It was Arien Van’t Hof of Erasmus University Rotterdam to address the regulation of the local-community tension, but in the systemic risk context. While looking critically at the EU banking regulation and supervision framework, his main aim was to determine which EU, national or other interests would the institutions and authorities involved ultimately serve.

Methodically, Arien used as research guiding tools the powers of EU agencies and institutions, the procedural aspects of rule-adoption and implementation, the institutional checks and balances, by comparing roles and responsibilities between the Commission, the Council and the European Central Bank.

In terms of regulation and supervision, the assessment process was filtered through the lenses of the micro prudential stability and the macro-prudential stability. To do so, it started with a critical presentation of the European System of Financial Supervisors, consisting of European Systemic Risk Board (ESRB), European Supervisory Authorities, including the European Banking Authority (EBA), the National supervisory authorities (NSAs) and the Single Supervisory Mechanism (SSM), as well as of the key instruments of system functioning that include the Capital Requirements Regulation (CRR) and Capital Requirements Directive (CDR) IV.

Further evaluating the microprudential banking supervision system, from EBA and SSM perspectives, the panellist found that, in what regards EBA, one could sense a rigid regulatory approach (when exercising binding powers) and certain discretion (when dispensing non-binding powers), while in relation to the NSAs as SSM agents, it argued that, all in all, their supervisory discretion is diminishing.

Turning to the macro prudential oversight, which was presented as crucial for identifying and prioritising systemic risks, Arien Van’t Hof has emphasized the hybrid nature of the European Systemic Risk Board. ESRB is composed of national central bank governors and 10 representatives of EU bodies or advisory committees. The presenter highlighted its likely inefficient decision-making process, but also the fact that the Council preserves the rights to reject some intended macro prudential measures of NSAs.

In this framework, the key arising question was how to harmonize the potentially different views at the level of various EU institutions and between national and EU bodies. As Professor Alex Turk mentioned in his comment, this further raises policy choices and issues of defining national interests against the systemic financial risk. The case of compatibility of bankers’ bonus regulation (limitation) at the EU level with bonus practices in certain Member States financial markets may well illustrate the national bias and policy choice point.

Concluding, the banking regulation and supervision framework attempts to resolve the local-community tension by diminishing supervisory discretion of the national authorities, despite further balancing this limitation by giving a say to such national authorities in many EU decision-making bodies. Result is that fragmentation of the internal market is reduced, while attention for financial stability is likely to increase.

Sabrina Wirtz of Maastricht University has brought the debate into the transnational sphere, by exploring the EU risk regulation and its global standards with a case study on the pharmaceutical industry and the operation of the International Conference on Harmonization (ICH).

As it was eloquently argued, the rule-making settings vary depending on the globalization context and on the regulative instruments. We are witnessing a shift in the regulatory landscape from ‘government’ of local or national/federal nature to the ‘governance’ of global cooperative networks, using numerous soft law mechanisms and defining standards in an osmotic manner. In this framework, a ‘standard’ was defined as a ‘voluntary and expertise based rule, constituting measurable criteria by which a product or a production process or service can be evaluated on the basis of technical or physical conditions’.

To substantiate the argument, Sabrina went on to discuss the structure of ICH (a truly transnational partnership between regulatory authorities from around the globe and industry associations, with the EU being represented through the European Medicines Agency), its mandate (harmonization of technical requirements on product and processes quality, safety and efficacy), as well as, its modus operandi (illustrating a bottom-up approach in setting standards and guidelines with no formal binding effect, but massively adopted as positive law).

A special attention was given to the process of formal adoption by the EU of the ICH standards, with the EU seen as participant and potential beneficiary of the rule making. In fact, it was pointed out, there are over 60 EMA Guidelines based on ICH similar technical documents, and although they are not legally binding, most of them do enjoy the same status as all other EMA Guidelines. In addition, there is certain evidence that such guidelines do influence further adoption of binding EU legislation. A number of factors may contribute to this result, including the EU Commission relying regularly on the EMA Guidelines and in its turn, the EMA being a member of ICH and applying consistently in its scientific assessment the ICH Guidelines.

While global governance under the promotion of the industry representatives could be an adequate frame for standard setting, issues of accountability and poor legitimacy of decision-makers, insufficient or lack of transparency and incidents of limited or mimicked public consultations in the rule-making process, often arise. The EU stands here in a delicate position, since so far, certain global standards so adopted had a large impact on European regulations.

But finally, according to Sabrina Wirtz the problem and the solution lie in the same place, as the expertise is with the industry and the regulatory powers with the authorities and hence, by putting them together, responsibly and transparently, satisfactory standard setting may be achieved.

The three case studies presented in the EU Law Panel at the IGLRC 2014 have showed that standard setting within the EU regulative process may be convincingly tested by reference to norm generation (using both top-down and bottom-up approaches) and norm compliance (illustrating formal non-compliance of binding law but also voluntary compliance of soft law).

Whether the EU law-making continues its somewhat anti-cyclic constitutionalisation process or, on the contrary, it allows more space for transnational self-creating, self-validating rules of law, it definitely remains a long(er) term debate.

Article

Free movement of capital and Golden Shares in Volkswagen: unexpected twist or foreseeable outcome?

Jelena Ganza, PhD Candidate, Dickson Poon School of Law, KCL

Pursuant to the so-called ‘loyalty to the EU principle’ enshrined in Article 10 EC, Member States are obliged to remove national barriers to free movement of capital (Article 63 TFEU). However there are certain national barriers which the Member States sought to retain in spite of the foresaid obligation. These barriers are the so-called ‘golden shares’[i]  which allow State to retain control over former SOE’s. Typically, the special ‘golden’ share (hereafter: GS) aimed to remain property of State, granting it with special powers and allowing to exercise control over company’s management which could only be exercised by a majority shareholder. In order to be acceptable under the then EC law GS had to be justified on grounds of exceptions laid down in the Treaty[ii], meet legal certainty and proportionality requirement – an imperative that could not be easily satisfied. The EU Commission has long acknowledged that there is no place for unjustified GS and sued erring Member States in the Court of Justice of European Union (CJEU). The CJEU has evaluated the legality of GS in fifteen cases and only in one instance their application has been justified.[iii] These condemning judgments are of declamatory character therefore it is up to the national Government to choose how to comply.

Compliance obligations stem from the CJEU’s judgments – depending on the wording of the operative part and summary the State’s Government could employ different compliance strategies. Firstly, the Member State could repeal GS, thus entirely eliminating the infringement of the Treaty. Compliance by repeal could be seen as acting in line with the sincere co-operation principle as it eliminates the breach of the Treaty in its entirety and therefore effectively complies with the judgment. Secondly, the Member State could attempt to meet the justification criteria so that overruled GS could pass the justification test. Since passing the justifying GS is a challenging task, in practice the Commission was never satisfied with ‘compliance by amendments’. Following such amendments GS retained their dissuasive powers for foreign investors and subsequently impeded capital movements. As a result, any justification attempts of overruled GS inevitably triggers further infringement proceedings on amended GS or even sparks further infringement procedure for non-compliance with the original judgment. Therefore, any ‘compliance by amendment’ could be seen as acting contrary to the sincere co-operation principle under Article 10 EC. The above finding has been tested by analysis of Italian cases[iv] which revealed that GS are of obstinate character and governments could be reluctant to repeal them while tampering with the justification test instead.

Generally GS judgments clearly established which provisions were illegal leaving the Member State with indication as to which GS have to be repealed or amended. However, as the following analysis will show, sometimes the Member States are left with a GS ruling with a seemingly dubious compliance obligations stemming from it. Such was the case with the CJEU’s landmark ruling on C-112/05 Commission v Germany[v] which is one of the most famous and longest-running cases in Community history. In this case the Commission challenged one of the oldest instances of GS, the so-called ‘Volkswagen Law’ (the Law) implemented in 1960’s exclusively for the automobile company Volkswagen. It must be stressed, that the Law differs considerably from other GS in other States in one respect: it did not reserve special powers for the sole benefit of the Member State per se but rather used provisions of national company law to treat State authorities as ordinary private shareholder.

The Law created a legal framework which indirectly benefited the State of Lower Saxony – major shareholder with 20% stake. The Law limited the voting rights for all shareholders to 20% of the total share capital, while at the same time increased the majority required for approval of resolutions by general shareholder meeting from 75% to 80%. The set percentage thresholds were by no means accidental, but rather aimed to correspond with Lower Saxony’s stake in Volkswagen The combination of the ownership ceiling and increased majority provision allowed for Lower Saxony to exercise control over Volkswagen that would normally be available only to a shareholder owning 25% of the shares.   Additionally, the Law allowed for Lower Saxony to appoint two directors to the company’s supervisory board for as long as it retains any shares in the company, thus explicably granting the authorities with special power to assign directors. However, neither increased majority, nor voting right ceiling referred to Lower Saxony as a sole beneficiary of the Law. In the strictest sense any other shareholder owning 20% of Volkswagen’s shares could benefit from these provisions. However, it is clear that the Law was created for the sole benefit of Lower Saxony – the 20% minority stakeholder.

In spite of the fact that the Commission asserted that all three paragraphs of the Law infringe the Treaty individually, both Advocate General and the CJEU analysed the increased majority and the voting right ceiling together in order to assess their combined deterring effect on capital movements.[vi] At the joint examination of cumulative effects of the Law the Court went on to link the effects of the increased majority and the voting right ceiling, stating that provisions supplemented each other, creating a legal framework which enabled Lower Saxony to exercise considerable influence on the basis of its investment.[vii] The Court came to the conclusion that the combination of the foresaid provisions constitutes a restriction on the movement of capital.[viii] The Court ruled that by maintaining in force provision on directors’ appointments, as well as voting right ceiling in conjunction with increased majority provision, Germany has failed to fulfil its obligations under Article 63 TFEU.

Germany had to comply with the judgment by choosing its compliance strategy – to repeal or amend the Law. While choosing the strategy the Government referred to the judgment and proceeded with amending the Law by removing some overruled provisions.[ix] In the Government’s view the judgment anticipated two necessary amendments: to the director’s appointment right and the deterring system. The Government concluded that since the interplay or interaction between the two provisions of the Law infringes the Treaty, by removing only one component of the system the interaction between the two provisions will be eliminated effectively terminating GS so there would be no necessity to repeal the remaining provision. Therefore, the compliance strategy anticipated amendment to the Law by repealing the voting right ceiling (which was also contrary to German law on stock companies) and provision on director’s appointments, yet the increased majority provision remained in force. Subsequently, the Government choose to follow the wording of the ruling without going further than strictly necessary. Effectively, Germany has complied with the judgment while at the same time Lower Saxony’s 20% stake allowed it to continue its influence over Volkswagen.

Commission was not satisfied with such compliance strategy and threatened to sue Germany for non-compliance with the original GS ruling under Article 260 TFEU. Germany defended its compliance strategy emphasising that it had no obligations to amend overruled Law beyond the requirements of the judgment. Germany insisted that the judgment required for abolition of the legal framework and subsequent amendment met that requirement. Commission pushed for removal of increased majority provision, but Germany resisted.

The ambiguity of compliance obligations stemming from Commission v Germany has been further deepened by judgment of District Court of Hannover[x]. The District Court assessed the wording of the CJEU’s judgement and concluded that neither the increased majority provision nor the voting rights ceiling is contrary to the Treaty per ce. [xi]   According to the District Court only the joint effect of the said provisions constitutes the breach of the Treaty.[xii] However, in spite of the District Court’s finding, the EU Commission urged Germany to repeal the remaining provision of the Law in order to fully comply with ruling on C-112/05. Germany, on the other hand, sought to convince the Commission that such interpretation of compliance obligations stemming from the said judgement is erroneous. Germany insisted that repealing one of the two provisions of the Law is sufficient to facilitate full compliance. The government proposed to submit a joint application for interpretation of the CJEU’s judgment in order to resolve the differing views on compliance obligations.  Yet the Commission declined Germany’s offer stating that there are “no doubts as to the meaning or scope of the 2007 Judgment”.[xiii]

The above interpretative challenges led the Commission to refer the matter to the CJEU in 2012 under Article 260 TFEU suing Germany for non-compliance with judgment on C-112/05, stating that it is apparent that each of the three contested provisions of the Law infringed Article 63 TFEU individually. The resulting judgment on C-95/12 Commission v Germany, delivered on 22 October 2013 was the first of its kind in the existing body of GS case law since no other Member State had to such great extent resisted the Commission’s views on necessary compliance obligations. In C-95/12 the CJEU ruled that the Commission’s complaints should be dismissed. Such an outcome of the judicial proceedings could be seen as a surprise for some, yet for others, it would appear to be anything but a surprise.

First, even though the judgment on C-112/05 could be seen as missing the opportunity to outlaw the increased majority provision of the Law, the judgment on C-95/12 merely concerns the alleged non-compliance with the GS ruling and not the potential illegality of the foresaid provision. In C-95/12 the Court has evaluated German compliance strategy and came to a conclusion that it has fully complied by removing one of the two provisions which constituted an illegal system. The outcome of C-95/12 also appears unsurprising once the ruling by the District Court of Hannover is taken into account. The District Court has rightfully observed that the CJEU has evaluated the two provisions of the Law as two pieces of one whole therefore removing one part of the system would result in its ineffectiveness. Lastly, the outcome of the case C-95/12 has been predicted by Advocate General when he concluded that the judgment on C-112/05 is not “particularly ambiguous” and it is “regrettable” that the parties had contrasting views on its interpretation and could not agree on the necessary compliance measures.[xiv] Advocate General’s opinion has predicted doom for the Commission’s claims, confirming that in order to determine the necessary compliance strategy Germany had to refer to the operative part of the judgment and not to the broad interpretation of assumed illegality of all three provisions of the Law as suggested by the Commission.[xv]

Even though the outcome of the judgment C-95/12 could have been predicted, it should be emphasised that the increased majority provision of the Law could once again become subject to further judicial review. The retained provision of the Law has the potential for being in breach of free movement of capital. However, the Commission would have to initiate a separate infringement procedure to prove that. The above analysis of German compliance strategy demonstrates the inherent obstinacy of GS. If, in line with the sincere co-operation principle, Germany would have opted to repeal all the contested provisions, there would not be any interpretational issues of the judgment and the increased majority provision would not retain the potential for being taken to the CJEU on separate proceedings in the future. This analysis once again demonstrates that when it comes to compliance with GS judgments, the best possible compliance scenario would be repealing GS altogether rather than amending them. The controversy of the Court’s judgment on C-112/05 is likely to re-appear in the future if the Commission would choose to refer the matter to the Court. The extent to which Germany’s compliance with the ruling could be seen as acting in line with ‘sincere co-operation’ principle under Article 10 EC could also be questioned, especially if legality of the retained provision would be tested by the Court.

 

Key terms: Golden Shares, Compliance, Free Movement of Capital

Legislation:

Law governing the transfer of share rights of Volkswagenwerk GmbH to private parties (Gesetz über die Überführung der Anteilsrechte an der Volkswagenwerk Gesellschaft mit beschränkter Haftung in private Hand) of 21 July, 1960, BGBI. I 1960, at 585 and BGBI. III at 641, amended 6 September 1965, BGBI. I at 461 and 31 July 1970, BGBI. I at 1149.

Draft law Amending the Law governing the transfer of share rights of Volkswagenwerk GmbH to private parties (Gesetzentwurf der Bundesregierung, Entwurf eines Gesetzes zur Änderung des Gesetzes über die Überführung der Anteilsrechte an der Volkswagenwerk Gesellschaft mit beschränkter Haftung in private Hand)

 

Cases:

C-112/05 Commission v Germany;

C-95/12 Commission v Germany;

Judgment of the first Commercial Chamber of the District Court of Hannover of 27.11.2008 – 21 O 52/08, Judgment of the first Commercial Chamber of the District Court of Hannover of 27.11.2008 – 21 O 61/08.

 

 

 


[i] On the subject see Jelena Ganza for KSLR European Law Blog: ‘A Continuing analysis of the Never-Ending Story: Golden Shares after Italian elections’, (10 June 2013) and ‘Italian Golden Shares – a Never-Ending Story?’, (January 2013).

[ii] public health, policy and security, see Article 55 EC, Article 56 EC, Article 223 (b) EC, Article 65(1)(b) TFEU

[iii] Commission v. Italy, C-58/99, judgment of the CJEU of 23 May 2000; Commission v. France, C-483/99, 4 June 2002; Commission v. Belgium, C-503/99, 4 June 2002 (justified); Commission v. Portugal,  C-367/98, 4 June 2002; Commission v. United Kingdom, C-98/01, 13 May 2003; Commission v. Spain, C-463/00, 13 May 2003; Commission v. Italy C-174/04, 02 June 2005; Joined cases C-282/04 and C-283/04, Commission v. Netherlands, 28 September 2006; Federconsumatori v. Commune di Milano, C-463/04 and C-464/04, referred to the Court for preliminary ruling, 6 December 2007; Commission v. Germany, C-112/05, 23 October 2007; Commission v. Spain, C-274/06, 14 February 2008; Commission v. Spain, C-207/07, 17 July 2008; Commission v. Italy, C-326/07, 26 March 2009; Commission v. Portugal , C-171/06, 8 July 2010; Commission v. Portugal, C-543/08, 11 November 2010

[iv] ibid n (i)

[v] Commission v. Germany note iii above

[vi] Opinion of Advocate General Ruiz-Jarabo Colomer, delivered on 13 February 2007 in Case C-112/05 Commission v Germany [76]-[81]

[vii] Commission v. Germany [51].

[viii] Commission v. Germany [56].

[ix] See Deutscher Bundestag (25 September 2008), Gesetz zur Änderung des Gesetzes über die Überführung der Anteilsrechte an der Volkswagenwerk Gesellschaft mit beschränkter Haftung in private Hand (Law amending the Law governing the transfer of share rights of Volkswagenwerk GmbH to private parties), BGBl. 2008 I No 56, p. 2369

[x] Judgment of the first Commercial Chamber of the District Court of Hannover of 27.11.2008 – 21 O 52/08, Judgment of the first Commercial Chamber of the District Court of Hannover of 27.11.2008 – 21 O 61/08.

[xi] Judgment 21 O 61/08 (n x) at Reasons I 2 (k)

[xii] Judgment 21 O 61/08 (n x) at Reasons I 2 (k)

[xiii] Advocate General (2013), Opinion of Advocate General Wahl, delivered on 29 May 2013, Case C 95/12, European Commission v Federal Republic of Germany, [12].

[xiv] Advocate General (2013) [24]-[25].

[xv] Advocate General (2013) [26].

featured

FEATURED: Invitation to IGLRC 2014 EU Law Panel

International Graduate Legal Research Conference
(IGLRC) 2014
The eighth annual International Graduate Legal Research Conference (IGLRC) will be held on the 14-15 April 2014 at King’s College London, home of one of the top 25 law schools worldwide and located in the heart of London’s legal district.
This two-day conference has a reputation for being a unique platform to meet other researchers and academics from across the world. It will also give delegates a fantastic opportunity to listen to a wide variety of selected presentations from legal researchers working in highly topical areas of contemporary legal scholarship. This year, we boast two tailored workshops for early career researchers by Hart Publishing and the Institute of Advanced Legal Studies (IALS).
We are pleased to announce that we will have two keynote speeches this year. The first will be by Prof. David Nelken, our new Associate Dean for Research and the second by our co-sponsor, Public International Law firm, Volterra Fietta. Amazon voucher prizes are available for best presentation and best poster!
Our marketing leaflet can be found here, with provisional programme at www.iglrc.com/programme
Several panels with King’s Law School chairs have been confirmed to take place, of most interest to the blog is the European Union Law panel chaired by Prof. Alex  Türk themed
“Balancing Different Standards of Regulation in the EU”
  • ‘Resistance to Compliance: Is there a future for ‘Golden Shares’ within the EU’ – Jelena Ganza (King’s College London)
  • ‘The institutional balance in EU financial supervision’ – Arien Van’t Hof (Erasmus University Rotterdam)
  • ‘EU risk regulation and its global standards: the case of pharmaceuticals’ – Sabrina Wirtz (Maastricht University)
Jelena is a regular contributor to the KSLR EU Law blog and another of her posts is due to be published in the coming weeks. This is a great opportunity to  hear her speak in person about the very topics she blogs about!
To register, follow the link to the KCL e-store: http://bit.ly/1iSXQ0j
Registration costs £50 now, £55 on the day
Current LLM students and King’s affiliated participants get a discounted rate,
email submissions@iglrc.com for the password

Visit www.iglrc.com for further information.
Be part of #IGLRC2014 on Twitter @IGLRC or by liking IGLRC on Facebook
Article

A Continuing analysis of the Never-Ending Story: Golden Shares after Italian elections

Jelena Ganza

PhD candidate, Dickson Poon School of Law, KCL

 

‘Golden shares’ challenged

The ‘golden shares’ (hereafter GS) were created at the time of privatisation when the EU Member States’ Governments were actively disposing of their shareholdings in former state monopolies, such as energy companies and telecoms. Under the normal operation of company laws a loss of share ownership would normally trigger a loss of control.  However, since many of the privatised companies were operating in strategic industries which provided public services, the Governments sought to retain their controlling grip via ‘golden shares’. Being a special class share, GS grants its holder (usually the Minister responsible for the relevant industry) with a wide range of special powers that allows them to control the company. Such State-driven interventions could make acquisitions in companies less attractive, thus the use of (non-discriminatory) golden shares could be justified only by the existence of overriding public interests and only if applied in a legally certain and proportional way.[i] The striking majority of GS, which were put to the scrutiny of the Court of Justice, have failed to pass this justification test, the only exception being case C-503/99 Commission v Belgium.[ii]

 

Passing the justification test

In Belgium the GS in two strategic energy companies SNTC and Distigaz were implemented by virtue of two Royal Decrees of 10 June 1994[iii] and of 16 June 1994[iv] respectively, allowing the Minister for Energy to exercise limited special powers. The Minister had the right to be notified in advance on any transfer of company’s system of lines and conduits or on any dealings in other strategic assets of the company, which are essential for the domestic distribution of energy products.[v]  Within 21 days after receiving prior notification the Minister could oppose any of the above operations in cases where they could have adverse effects to the national interests in the energy sector.[vi]  The GS also empowered the Minister to appoint two non-voting representatives of an ‘advisory capacity’ to the board of directors, which could propose the annulment of any decision that is deemed contrary to the national energy policy.[vii] The Belgian GS have passed the narrow justification test since they granted the Minister with special powers which were limited to certain decisions concerning specific strategic assets of particular companies, and were limited by time. Apart from Belgian GS, no other arrangement of such kind has been justified. In spite of the narrow justification criteria some Member States were eager to retain their GS following the condemning judgement: they sought to adjust national laws to match those of Belgium.

 

Obstinate and insufficient: Italian golden shares

Italy could be seen as an example of persistent non-compliance with the Court’s judgements, since the Government held on to its GS while continuously amending their scope and application in quest for passing of the strict justification tests.[viii] Due to this tactics the golden share Decree-Law 332/1994[ix] (created back in 1994) became an obstinate piece of legislation. GS created by the foresaid Decree were repeatedly overruled by the Court delivering condemning rulings in 2000 (Case C-58/99)[x] and 2009 (Case C-326/07)[xi]. Over the course of the infringement proceedings the Italian Government has shown its loyalty to the EU law by revealing an inclination to comply and amend its GS. Nevertheless, for nearly a decade, the Government’s willingness to conform was not supported by adequate compliance initiatives. Since the first ruling the Italian GS have undergone a number of makeovers, yet those amendments proved to be  ‘bad laws’, while being inadequate and insufficient to remedy the breaches established by the Court.[xii] The compliance initiative by former Prime Minister Silvio Berlusconi[xiii] of 20 May 2010 proved to be insufficient[xiv] and the Commission has pursued a penalty action under Article 260 TFEU. When the new technocratic government (led by former EU Competition Commissioner Mario Monti) has been appointed in November 2011 to implement necessary austerity measures, the final compliance on GS could have been envisaged. Monti has confirmed that in time of the general elections the new golden share law would be drafted and implemented. Monty has stood up to his promise and on 16th of March 2012 (one year prior to general elections scheduled for April 2013) a new golden share Decree-Law No.21 entered into force (hereinafter – the Law).[xv] The Law sought bringing the national GS in proximity to the justified Belgian measures: the long-awaited urgent compliance measure recasts original GS of Decree-Law 332/1994.

 

The new golden share law

The new law has limited the discretionary powers reserved for the Italian authorities to veto and approve certain important decisions in companies which operate in defence and national security and in companies which hold strategic assets in energy, transport and communications industries. Firstly, the execution of special powers is now divided between the two types of companies/assets and two separate Articles provide detailed rules for each of the types, guaranteeing legal certainty as found in Belgian law. Secondly, the Law has a wider scope of application: it applies to any company operating in defence or national security and to all companies that hold ‘strategically important assets’. The latter innovation extends the applicability of the GS beyond the boundaries prescribed by Belgian law (which applied only to two companies). Lastly, the exercise of special powers appears to be less generic and is limited to time-limited, specific circumstances. For example, Article 1 of the Law states that special powers in defence and national security companies could be ‘triggered’ in case of a serious threat to the essential interests of defence and security of the Italian State. In case of such a threat the Italian government has special powers to (a) impose specific conditions on the purchase of an interest; (b) power to veto resolutions of the General Meeting or the Board of Directors concerning important decisions; and (c) power to oppose a purchase of shares by any person if such acquisition could jeopardize the interests of the defence and national security.

 

Defence and security companies

As a pre-condition for exercise of special powers in defence and security companies the seriousness of a potential threat to the essential interests has to be evaluated and the following assessed: the purpose of the resolution, the strategic assets or businesses subject to the transfer, suitability of the defence system and national security, information security relating to military defence, international interests of the State, protection of the national territory or critical infrastructure.[xvi]  In order to evaluate the seriousness of a potential threat the Government shall, in accordance with the principles of proportionality and reasonableness, apply a ‘fit and proper test’ in light of the buyer’s potential influence on society, taking into account the adequacy and the reliability of the buyer. Monti’s Law sets the prior notification obligation similar to Belgian GS: any operation that has the potential to be vetoed has to be notified to the Government within ten days prior to implementation of such operation. The Government can exercise its veto power within fifteen days following notification if any of the risks mentioned above become evident. The veto power could be exercised in form of imposition of specific conditions sufficient to safeguard the essential interests of defence and national security.

 

Energy, transport and communication companies

Article 2 of the Law governs special powers in strategic companies operating in energy, transport and communications sectors, covering companies, plants, assets and relationships which are of strategic importance, are dealing with network industries and are vital to ensure the minimum supply and the continuity of essential public goods and services of strategic importance. The prior notification obligation also applies to the above companies and it has to be made within 10 days prior to important operations.[xvii] The Government could veto any of such operations within 15 days of receiving the notification, if such operation could possess actual and serious threat to the public interests of safety and operation of networks, services and plants and possess threat to continuity of vital supply of any such services. The Government is also entitled to impose conditions or veto purchases of ‘strategic assets’ for companies or residents originating from a non-EU country.[xviii] Any such acquisitions must be notified to the Italian Government within 10 days prior to transaction and it could then either veto or make such an acquisition subject to specific conditions within 15 days from receiving notification. The power to veto/impose specific conditions could be exercised only in exceptional situations where the public interest relating to the safety and operation of any ‘strategic asset’ may be materially jeopardized. In case of Article 2 a ‘fit and proper test’ will be carried out in light of the buyer’s potential influence on the society.

 

New golden share doomed?

Monti’s new GS Law aimed at establishing a comprehensive, legally certain and precise investment control regime in the strategic sectors. More than a decade of inadequate compliance initiatives have seemed to come to an end. However, in order to be fully effective the Law had to be ‘activated’ by further Decrees of the Prime Minister, specifying which companies and ‘strategic assets’ are subject to new regime.[xix] The deadline for implementation of Decrees was in September (for companies operating in energy, transport and telecoms) and August (for defence and security sector) 2012, but no such Decrees were implemented, rendering Monti’s ‘good law’ ineffective.

Due to the new developments on Italian political arena, in spite of the technocratic Government’s promises, the ‘activating’ Decrees could not be implemented in time: Italian politicians have prevented this from happening. Berlusconi blamed Monti’s Government for driving Italy into further recession and after losing the support of major parties, Monti had to resign on 8 December 2012 leaving the GS issue unsettled.Following Monti’s resignation, the Italian Parliament has been dissolved while the elections which followed in February 2013 culminated in ‘political stalemate’.

The necessary Decrees on golden shares are not likely to be implemented in the foreseeable future, since the political party, which won a majority in Italian Chamber of Deputies, does not have a majority in the Senate (both majorities are necessary for the Law to be implemented). The EU Commission is currently looking at the Monti’s Law, but with reservation for further Decrees, the new GS regime as a whole could only be evaluated if (and after) all legislative measures are implemented.

 

Concluding remarks

For nearly two decades the GS are in place and over the years the Italian Government has repeatedly tested the patience of the EU Commission while engaging with procrastination and non-compliance with the condemning judgements on GS. At the time of implementation of first Italian GS, Berlusconi’s Government was in office and over years it has resisted to fully withdraw unjustified laws. Monti’s Law had a possibility of a bright future – it could have started a new chapter on GS justification. However, the latest elections precluded this from happening since Berlusconi’s protectionist influence is yet again back on political scene. The ‘loyalty to the EU principle’ enshrined in Article 4(3) TEU is seems to be, once again, neglected.

 


[i]         See, to that effect, Joined Cases C-163/94, C-165/94 and C-250/94 Sanz de Lera and Others [1995] E.C.R. I-4821, para. [23]; Case C-54/99 Église de Scientologie de Paris and Another v. Prime Minister [2000] E.C.R. I-1335, para. [18]; Case C-326/07 Commission v. Italy [2009] E.C.R. I-02291, para. [14]; Case C-367/98 EC Commission v. Portugal [2002] E.C.R. I-04731, para. [48].

[ii]        Case C-503/99 EC Commission v. Belgium [2002], E.C.R. I-04809,  (golden shares justified); Case C-483/99 EC Commission v. France [2002] E.C.R. I-04781; Case C-98/01 Commission v. United Kingdom [2003] E.C.R. I-04641; Joined cases C-282/04 and C-283/04 EC Commission v. Netherlands [2006] E.C.R. I-09141; Case C-58/99 EC Commission v. Italy [2000] E.C.R. I-03811; Case C-174/04 EC Commission v Italy [2005] E.C.R. I-04933; Case C-326/07 EC Commission v. Italy, see (i) above; Joined cases C-463/04 and C-464/04 Federconsumatori v. Commune di Milano [2007] E.C.R. I-10419; Case C-463/00 EC Commission v. Spain [2003] E.C.R. I-04581;  Case C-274/06 EC Commission v. Spain [2008] E.C.R. I-00026; Case C-207/07 EC Commission v. Spain [2008] E.C.R. I-00111; Case C-367/98 EC Commission v. Portugal, see (i) above; Case C-171/08 EC Commission v. Portugal [2010] E.C.R. I-0000, Case C-543/08 EC Commission v. Portugal [2010] E.C.R. I-11241; Case C-212/09 EC Commission v. Portugal [2011] E.C.R. I-00000; Case C-112/05 EC Commission v. Germany [2007] E.C.R. I-08995.

[iii]        Moniteur Belge of 28 June 1994, p. 17333

[iv]       Moniteur Belge of 28 June 1994, p. 17347

[v]        Case C-503/99 Commission v. Belgium, see (ii) above, para. [9]-[10]

[vi]       ibid

[vii]       ibid

[viii]      See Jelena Ganza on ‘Italian Golden Shares – a Never-Ending Story?’ http://kslr.org.uk/blogs/europeanlaw/2013/01/15/italian-golden-shares-a-never-ending-story/#_edn9

[ix]       (Italian Privatisation Law as amended), Decreto del Presidente del Consiglio dei Ministri, definizione dei criteri di esercizio dei poteri speciali, di cui all’art. 2 del decreto-legge 31 maggio 1994, n. 332, convertito, con modificazioni, dalla legge 30 luglio 1994, n. 474; Decree-Law No 332 of 31 May 1994 (GURI No 126 of 1 June 1994), converted, after amendment, into Law No 474 of 30 July 1994, (GURI No 177 of 30 July 1994)

[x]        Case C-58/99 Commission v. Italy, see (ii) above

[xi]       Case C-326/07 Commission v. Italy, see (i) above

[xii]       First amendment: Article 66 of Financial Law No 488 of 23/12/1999 and Decree on 11/02/2000 aimed to bringing legal certainty to when the special powers of Decree-Law 332/1994 could be used, (in Italian) at: http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1999;488 Gazzetta Ufficiale, n. 302 del 27-12-1999; for Decree 11/02/2000 see http://gazzette.comune.jesi.an.it/2000/40/5.htm; Second amendment: Article 4(227) to (231) Finance Law No 350 of 24/12/2003 and implementing Decree of 10/06/2004; (‘Urgent provisions to ensure the liberalisation and privatisation of specific public service sectors’, GURI No 170 of 24 July 2001), published in Italian Official Gazette No 120 on 25 May 2001, the original text could be found at: http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto-legge:2001;192; For Berluscony’s Decree in Italian see Decreto Del Presidente Del Consiglio Dei Ministri 20 maggio 2010 (published in Italian Official Gazette n.117 del 21-5-2010 ) (10A06506).

[xiii]      Decreto Del Presidente Del Consiglio Dei Ministri 20 maggio 2010 (published in Italian Official Gazette n.117 del 21-5-2010 ) (10A06506);

[xiv]      See Jelena Ganza, (viii) above

[xv]      Decreto-Legge 15 marzo 2012, n. 21  Norme in materia di poteri speciali sugli assetti societari nei settori della difesa e della sicurezza nazionale, nonche’ per le attivita’ di rilevanza strategica nei settori dell’energia, dei trasporti e delle comunicazioni. (12G0040) (published in Italian Official Gazette n.63 of 15-3-2012).

[xvi]      See Article 1 of Decree-Law No. 21, (xv) above

[xvii]     Actions such as changes in ownership structure, winding up, merger or de-merger, transfer of the head office abroad, change the corporate purpose, dissolution of the company, change of statutory provisions, transfer of subsidiaries.

[xviii]     Article 2(5) and (6) of Decree-Law No. 21, (xv) above

[xix]      According to Article 1(7) of Decree-Law No. 21, (xv) above, the list of companies subject to golden shares has to be updated at least every three years.

 

Article

Italian Golden Shares – a Never-Ending Story?

Jelena Ganza

PhD candidate, Dickson Poon School of Law, King’s College London

 

The obligation of sincere co-operation[i] of all Member States entails, inter alia, the national governments to comply with judgements of the Court of Justice of the European Union and adjust national measures accordingly. Timely and appropriate compliance initiatives would be seen as acting in good faith and in line with the sincere co-operation principle. Persistent non-compliance with judgements remains a problem and it particularly arises in cases where national governments’ influence over former strategic state-owned enterprises (SOEs), such as the largest Italian energy/oil company ENI, the former State telecommunication monopoly Telecom Italia and dominant electricity giant ENEL, is at stake.

This non-compliance stems from the basic conflict between the liberalisation aims of the Union and egoistic interests of certain Member States, which sought to retain influence over strategic industries by employing specific Control Enhancing Mechanisms called ‘golden shares’. Golden shares are the special class of shares introduced for the sole benefit of the ‘former owner’ – the State. These mechanisms aim at enhancing governmental control after privatisation, thus protecting important industries from turbulences of the free market. A typical golden share could have the following structure: where direct influence was lost due to privatisation, special powers, such as the power to veto the usage and disposal of strategic assets and the right to appoint directors, is attached to the golden shares held by the State.

These mechanisms are eagerly employed by States and ever so eagerly battled by European Commission and the Court. Golden shares are illegal, unless justified by overriding public interest and the necessity to protect public security, are legally certain, appropriate and non-discriminative.[ii] The justification criterion is narrow, however some governments were not only willing to face the Court, but were also determined to continue using already overruled golden shares post-judgement. Such tactics allow the matters to drag, contributing to a free-rider problem, which in turn means acting in bad faith and contrary to the principle of sincere co-operation, thus causing obstinate non-compliance and undermining the authority of the Court.

There are fifteen cases on golden shares in total and only in one of them they were justified.[iii] After the condemning judgement is passed, the State in question is obliged to comply without delay and either to severely restrict its golden shares or to repeal them altogether. Taking into account the success rate on justifying golden shares, it could be ascertained that following a condemning judgement the State in question is obliged not to try and amend but repeal them, since passing the justification test is a challenging task. Some States have disclosed a remarkable persistence in non-compliance alongside the determination to retain golden shares in spite of condemning judgements and looming sanction threats. Italy could be seen as one of such examples of persistent bad-faith compliance with four cases upon it, three of which relate to obstinate golden share Decree-Law 332/1994.[iv] Italian authorities have not addressed judgements in good faith and the same golden share measures were effective for more than a decade post-judgement.

The first ruling on golden shares has been on Italian Decree-Law 332/1994, which governed privatisation of SOEs.[v] Article 2 of the Decree-Law prescribed the implementation of further Decrees which would create a golden share in certain strategic companies. The Decree-Law did not infringe the Treaty by itself, as it merely empowered certain authorities to ‘activate’ it by further company-specific Decrees, stating which company shall be protected and how. Since the Decree-Law does not infringe the Community law per se – as long as the exercise of golden shares (laid down in further Decrees) passes the justification test – it becomes ‘untouchable’ in a way that it allows for a numerous amendments to ‘activating’ Decrees.  If golden shares ought to be found applied in unjustified manner, the ways in which they are applied could be changed, without the necessity to change the Decree-law itself. The conditions for exercise of golden shares, or more precisely – their absence, have become the subject of the Case C-58/99 in which the Commission sued Italy under what is now Article 258 TFEU. In absence of any justifications, in 2000 the Court found that the application of golden has been illegal. Even though the Italian government has expressed its willingness to comply prior to the judgement, no adequate amendments were undertaken.

The amendments which aimed at justifying the golden shares at stake were transposed into Article 66 of Financial Law No 488 of 23/12/1999 and the ‘activating’ Decree on 11/02/2000.[vi] This compliance measure aimed to provide a detailed explanation under which circumstances and how the Decree-Law 332/1994 should be executed, but failed to do so. These amendments were of declamatory character as they were merely repeating the requirements of the justification, while failing to specify what precisely the circumstances for their exercise are. This in turn retained the possibility of further disputes over legality of golden shares, which inevitably followed. The compliance initiative of Article 66 of No 488 acted as a smoke screen dispersing the attention from active golden shares. Acting in good faith would entail the Italian government, first and foremost, to abstain from vague and inadequate justification attempts which delayed final compliance as well as to abstain from implementation of new golden shares. Nonetheless, in 2001 following the condemning judgement in C-58/99, the Italian government implemented another golden share Decree-Law 192/2001, which has been overruled by the Court in C-174/04.[vii] In that case the Italian government tried once again to fiddle with the golden share amendments, but after being threatened with sanctions under Article 260 TFEU, it has fully abrogated contested provisions in 2006. Italian authorities have complied with the judgement on C-174/04 but it took one unsuccessful amendment and potential of application of penalties to achieve this.

As for the first Italian case on golden shares, the Article 2 of Decree-Law 332/1994 became subject of the preliminary ruling in Federconsumatori and later in C-326/07. In 2007 the Court has once again pointed on the incompatibility of the Decree-Law 332/1994 with the Community law in Federconsumatori, confirming the obstinacy of the golden shares. In this case the golden shares emerge in a newly amended format after yet another justification attempt via Article 4(227) to (231) Law 350 of 24/12/2003 and implementing Decree of 10/06/2004.[viii] This justification attempt emerged as a legislative answer to the Commission’s formal letter sent in February 2003, a second action under Article 258 TFEU on the Decree-Law 332/1994. The Italian authorities undertook to introduce new amendments by the end of 2003. The Law 350 was implemented in time, however, it did not contain justifications, but merely created a platform for further justification, by further Decree which was implemented in June 2004. However, the latter amendments were also insufficient to justify the use of golden shares. The new provisions of Law 350 alongside the Decree of 2004, have limited golden shares and introduced justifications based on ‘real and serious risk’ without specifying what exactly constitutes such risk.

These amendments became subject of the second condemning judgment in 2009 on C-326/07. Since compliance did not follow and no drafts were submitted for a review, the Commission proceeded with sanction-threats under Article 260 TFEU.  On 20 May 2010 Italy’s then Prime Minister Berlusconi has issued a Decree which aimed at addressing the Commission’s concerns and the Court’s ruling(s) by amending the criteria for execution of special powers laid down in ‘activating’ Decree 2004.[ix] The compliance measure of Berlusconi’s Decree of 2010 appears to be even more controversial, as it comprised of just one Article that in turn comprised of a single sentence which repeals contested justifications of Decree 2004! [x]   Berlusconi’s Decree repeals Article 1(2) of 2004 Decree (the one that laid down the criteria for exercise of special powers of Decree-Law 332/1994 and has been overruled by the Court in C-326/07). By eliminating the sole justifications of exercise of golden shares Berlusconi has ‘addressed’ the judgment. The only justification of special powers has now been repealed and this ‘compliance initiative’ does neither justify nor eliminate golden shares as such. Berlusconi’s Decree of 20 May 2010 appears to be a misleading measure that only aimed at further procrastination, acting as another smoke screen.

On 16 February 2011 the Commission has started the second stage of infringement proceedings and issued a reasoned opinion urging Italy to comply. During that time the Italian government has been going through one of the most difficult economic and political situations in its modern history: the European Debt crisis.  It has been a ‘lucky co-incidence’ that the need to adopt new golden share amendments has co-incised with some radical changes within the Italian government. Berlusconi and his government had to resign on 12 February 2011 while the new ‘technocratic government’ had to be formed in order to implement severe austerity measures. A new Prime Minister has been formally appointed – Mario Monti, the former EU Competition Commissioner, known for his tough stance on pro-European integration and competition enhancement. The technocratic government would stay in office until the elections in April 2013. By that time several ‘unpopular’ economic and social reforms have to be introduced and new provisions on golden shares would fall within that scope.

After more than a decade of procrastination, the Italian government seems to have finally addressed the issue of golden shares overruled back in 2000 by significantly amending the original provisions by new Decree-Law No 21 of 15 March 2012.[xi] This new Decree-Law 21/2012 establishes a notion of ‘strategic assets’ which are subject to golden shares and introduces a ‘fit and proper’ test for potential investors who seek participation in control of strategic companies. The golden share provisions now appear to have a considerably narrower scope of application and increased legal certainty. But yet again, the Law has been amended, not repealed, which in turn has the potential to be incompatible with EC law.  The Commission is currently analysing new provisions and awaits the implementation of the ‘activating’ Decrees which would further establish the conditions for the applications of golden shares. Whether or not Italy has finally complied with both C-58/99 and C-326/07 remains to be seen, while the battle for illegal golden shares continues, and State-driven protectionism is on the rise due to economic crisis.


[i] The obligation of sincere co-operation has been previously enshrined by the Article 5 of the Treaty of Rome, then became Article 10 EC and has been in principle replaced by 4(3) TEU which states: ‘Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.’

[ii] Criminal proceedings against Sanz de Lera and Others (C 163, 165 & 250/94), 14 December 1995, paras. 23-28, the Commission accepted that fundamental freedoms may be restricted by national measures justified on grounds of public policy, public security or public health or by overriding reasons in the public interest, but only in so far as there is no Community harmonising legislation providing for measures necessary to ensure the protection of the fundamental interests of the State. These measures have to meet the requirement of legal certainty and proportionality, see also the Court’s judgement Commission v Italy, C-326/07 of 26 March 2009, at para. 14; Commission v Portugal, C-367/98, judgement of 4 June 2002, at para 48;

[iii] Commission v. Italy, C-58/99, judgment of the CJEU of 23 May 2000; Commission v. France, C-483/99, 4 June 2002; Commission v. Belgium, C-503/99, 4 June 2002 (justified); Commission v. Portugal,  C-367/98, 4 June 2002; Commission v. United Kingdom, C-98/01, 13 May 2003; Commission v. Spain, C-463/00, 13 May 2003; Commission v. Italy C-174/04, 02 June 2005; Joined cases C-282/04 and C-283/04, Commission v. Netherlands, 28 September 2006; Federconsumatori v. Commune di Milano, C-463/04 and C-464/04, referred to the Court for preliminary ruling, 6 December 2007; Commission v. Germany, C-112/05, 23 October 2007; Commission v. Spain, C-274/06, 14 February 2008; Commission v. Spain, C-207/07, 17 July 2008; Commission v. Italy, C-326/07, 26 March 2009; Commission v. Portugal , C-171/06, 8 July 2010; Commission v. Portugal, C-543/08, 11 November 2010

[iv] (Italian Privatisation Law as amended), Decreto del Presidente del Consiglio dei Ministri, definizione dei criteri di esercizio dei poteri speciali, di cui all’art. 2 del decreto-legge 31 maggio 1994, n. 332, convertito, con modificazioni, dalla legge 30 luglio 1994, n. 474; Decree-Law No 332 of 31 May 1994 (GURI No 126 of 1 June 1994), converted, after amendment, into Law No 474 of 30 July 1994, (GURI No 177 of 30 July 1994)

[v] Decreto del Presidente del Consiglio dei Ministri, definizione dei criteri di esercizio dei poteri speciali, di cui all’art. 2 del decreto-legge 31 maggio 1994, n. 332, convertito, con modificazioni, dalla legge 30 luglio 1994, n. 474; Decree-Law No 332 of 31 May 1994 (GURI No 126 of 1 June 1994), converted, after amendment, into Law No 474 of 30 July 1994, (GURI No 177 of 30 July 1994)

[vi] The original text of the Art.66 of Financial Law No 488/1999 (LEGGE 23 dicembre 1999, n.488, Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge finanziaria 2000) could be found in Italian at: http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1999;488 Gazzetta Ufficiale, n. 302 del 27-12-1999, for Implementing Decree of the Prime Minister 11/02/2000 see http://gazzette.comune.jesi.an.it/2000/40/5.htm

[vii] The law titled ‘Urgent provisions to ensure the liberalisation and privatisation of specific public service sectors’, GURI No 170 of 24 July 2001, published in Italian Official Gazette No 120 on 25 May 2001, the original text could be found at: http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto-legge:2001;192,

[viii] Gazzetta Ufficiale No 299 of 27 December 2003 and Gazzetta Ufficiale No 139 of 16 June 2004

[ix] Decreto Del Presidente Del Consiglio Dei Ministri (DPCM) 20 maggio 2010 (published in Italian Official Gazette n.117 del 21-5-2010 ) (10A06506)

[x] Decreto Del Presidente Del Consiglio Dei Ministri 20 maggio 2010 (published in Italian Official Gazette n.117 del 21-5-2010 ) (10A06506)

[xi] Decreto-Legge 15 marzo 2012, n. 21  Norme in materia di poteri speciali sugli assetti societari nei settori della difesa e della sicurezza nazionale, nonche’ per le attivita’ di rilevanza strategica nei settori dell’energia, dei trasporti e delle comunicazioni. (12G0040) (published in Italian Official Gazette n.63 del 15-3-2012)