Kroes kijkt kritisch naar Spaanse barrières tegen overname Enesa door Duitse energiereus Eon (en)

The European Commission has informed the Spanish authorities of its preliminary conclusion that Spain has violated Article 21 of the EU Merger Regulation in that certain conditions imposed on E.ON for its proposed acquisition of control over Endesa raise serious doubts as to their compatibility with EC law. The Commission refers in particular to new conditions imposed by the Spanish Minister of Industry, Tourism and Trade in a decision of 3 November 2006, adopted in the framework of an administrative appeal against a previous decision of the Spanish Energy Regulator, CNE, on the proposed transaction. Spain has until 13 December to express its views on the Commission’s preliminary assessment.

Following a preliminary assessment, the Commission considers that these new conditions violate the EC Treaty’s rules on free movement of capital (Article 56), and on freedom of establishment (Article 43). Some of these conditions, also violate the rules on free movement of goods (Articles 28 and 29 EC), in the Commission’s preliminary view.

Previous Commission decision

On 26 September 2006, the Commission adopted a decision by which it declared that the decision of CNE of 27^th July 2006, subjecting E.ON’s bid for Endesa to a number of conditions breached Article 21 of the EU Merger Regulation (see IP/06/1265)

The Commission’s assessment of the conditions imposed by CNE remains valid in so far as the decision by the Spanish Minister has not modified – or has only slightly modified – the CNE's decision. In the framework of an on-going infringement procedure pursuant to Article 226 EC (see IP/06/1426), the Commission is evaluating whether the Spanish authorities complied with its decision of 26 September 2006.

In the preliminary assessment sent today to the Spanish authorities, the Commission has only examined the compatibility with Article 21 of the Merger Regulation of the different or additional conditions imposed by the Minister’s 3^rd November decision.

Next steps

The Spanish authorities have until 13th December to express their views. If the Commission's preliminary assessment were confirmed, the Commission could adopt a decision declaring that Spain has violated Article 21 of the Merger Regulation and requiring Spain to withdraw the conditions imposed by the Spanish Minister’s decision which are incompatible with EC law.

Background

Under Article 21 of the EC Merger Regulation, the Commission has exclusive competence to assess the competitive impact of concentrations with a Community dimension. Member States cannot apply their national competition law to such operations. Moreover, Member States cannot adopt measures which could prohibit or prejudice (de jure or de facto) such concentrations unless the measures in question:

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  protect interests other than competition and
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  are necessary and proportionate to protect interests which are compatible with all aspects of Community law.

Public security, plurality of media and prudential rules are interests that are recognised by the Merger Regulation as being legitimate, but specific measures must still be proportionate and fully compatible with all aspects of Community law.

The European Commission approved on 25^th April 2006 under the EU Merger Regulation the acquisition by E.ON of sole control of Endesa (see IP/06/528). After examining the operation, the Commission concluded that the proposed transaction would not significantly impede effective competition in the European Economic Area (EEA) or any substantial part of it.