Vrij verkeer van diensten: Commissie roept Italië op om regelgeving inzake concessies aan hydro-electrische maatschappijen te wijzigen (en)

The Commission has decided to send Italy a formal request to amend its procedures for granting concessions for the production of hydroelectric energy, which give preference to outgoing concession-holders and, in the Trentino-Alto Adige Region, to local public bodies. The Commission regards these procedures as incompatible with the freedom of establishment. The request is in the form of a reasoned opinion the second stage in the infringement procedure provided for in Article 226 of the EC Treaty. If it does not receive a satisfactory reply within two months, the Commission may decide to bring Italy before the Court of Justice.

The Commission has decided to send Italy a reasoned opinion on grounds of the incompatibility of its legislation on granting hydroelectric concessions with the principle of freedom of establishment, which prohibits restrictions on the cross-border exercise of economic activities, including in particular any form of direct or indirect discrimination between Community operators.

First, the Commission queries the preference given, under Article 12 of Decree No 79 of 11 March 1999 (the "Bersani Decree"), to outgoing concession-holders whose bids are equivalent to those of other competitors for the renewal of concessions for the production of hydroelectric energy. A preference of this kind constitutes a serious infringement of the principle of equality of treatment for all applicants that is likely to discourage potential candidates from taking on the complex technical work of drawing up and submitting bids, given that the outgoing concession-holder can have the final say in the matter.

This preference cannot be justified on grounds of plant safety or the security of energy supplies, as it is not in itself a suitable means for achieving such aims and would in any event be disproportionate, since it could be replaced by less restrictive alternatives, such as mandatory application of a precise set of specifications, inspections, penalties etc.

The Commission also criticises the automatic extension of concessions existing at the time when the Decree came into force for periods of up to thirty years (particularly in the case of concessions held by the State-owned electric company Enel).

This system would be likely to result in the status quo being maintained indefinitely, since when the extended concessions were about to expire, all the existing concession-holders would be able, if they wished, to take advantage of the preference given to them for a further period of many years. In this way, other operators would be eligible only in theory.

The Commission also contests similar provisions set out in Article 11 of Legislative Decree No 463 of 11 November 1999 on the autonomous Region of Trentino-Alto Adige, which gives local public bodies and companies belonging to them a preference similar to the one described above for outgoing concession-holders. This departure from equality of treatment cannot be justified on grounds of protecting local authorities and local autonomy, nor are such aims in themselves being called into question. In its reasoned opinion, the Commission challenges the fact that this Legislative Decree provides for automatic extension until 2010 for concessions granted in the region, but only for Enel and companies owned by the local authorities.

Up-to-date information on all infringement proceedings against Member States can be found at the following address:

http://europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm