Press Release: Free movement of capital: Commission opens infringement proceedings against Italy regarding the new regime for motorway concession in Italy

In the context of the reform of motorway system of concessions in Italy and the proposed merger between Autostrade and Abertis, the Commission has issued a letter of formal notice addressed to the Italian authorities for the possible violation of Treaty provisions regarding the free movement of capital and establishment. In particular, the Commission is concerned that the new system of motorway concessions may create uncertainty that could discourage investors. The lack of clearly stated policy objectives pursued by the provisions in question and the lack of justification of the measures taken may unduly introduce uncertainty on the upcoming renegotiation of existing concessions and, therefore, the new system may unduly restrict the free movement of capital and the right of establishment as enshrined in EU Treaty rules (Article 56 and 43 respectively). The restrictive effect of these provisions is enhanced by the threat of withdrawal of the existing concessions in the event that an agreement is not reached between the Italian authorities and the concessionaries. Separately, the Commission understands that provisions limiting the voting rights of construction companies participating in the operation of motorway concessions to 5% of the company's capital when appointing the directors of the board of the concessionaire and which may unduly restrict both fundamental freedoms, will be amended. The request will take the form of a letter of formal notice (the first stage of infringement proceedings provided for in Article 226 of the EC Treaty). If there is no satisfactory reply within 2 months to the letter of formal notice, the Commission may decide to issue a formal request to Italy (in the form of a so-called ‘reasoned opinion’, the second stage of infringement proceedings) to revise the legislation in question.