This paper presents a legal study of M & A between the energy enterprises in the European Union. Generally, the national interest is negative in the internal market, but toward the liberalization of European Energy Market in 2007, we can find some conflicts between the national interests, namely “Patriotisme economique”, for example the M & A for Suez (France). We study that the fundamental freedom of EU laws, —free circulation of capitals and freedom of establishment—, has a certain effect on such conflicts between the member states.
In the merger plan between Suez and Gaz de France (GDF), there is two points at issue: the European concurrence law and the fundamental freedom of EC treaty. For the first point, the Commission approved their merger plan on November 14, 2006 after examination by EU merger regulation (Regulation 139/2004). For the second point, the French Decret No. 2005-1739 has an indirect influence on their merger plan.
This paper analyzes the EU legal system by the points of M & A. Against the national interest in the internal market, we have the merger regulation (139/2004), the take over bids directive (2005/56/EC) and the European Company regulation (2157/2004) etc., and also many case laws of the European Court of Justice (ECJ).
The first part explains the harmonization of the practice of take over bids in the members states and the transposition of the directive 2005/56/EC in France, where is the scene of merger between of Suez and GDF. This directive regulates the practice of take over bids in the position of liberalism, but the article 12 of this directive gives the reciprocity for the defense against take over bids. In consequence the member states could be protectionist. France has chosen this article 12 and can protect French national company from the menace of take over bids by foreign investors and/or companies.
The second part analyzes the case laws of ECJ concerning Free circulation of capitals and Freedom of establishment. If the specific shares (Golden Shares) are issued for the defense against take over bids, it seems to violate Free circulation of capitals (Art. 56 EC) and Freedom of establishment (Art. 43 EC). On June 4, 2002, ECJ pronounced that the French case (C-438/99) and the Portuguese case (C-367/98) violated the fundamental freedom of EC treaty, but the Belgian case (C-503/99) was justified by the clear criteria of objection. On June 2, 2005, ECJ pronounced that the Italian national law limiting the voting right for certain foreign shareholders of energy company, violated the free circulation of capitals (C-174/04).
In conclusion, this paper states that the question of national interest remains to be solved in the European energy politics and the M & A for national company. The common interest in the Community should continuously be pursued by 27 member states of EU, including Bulgaria and Romania.
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