The Spanish Prior Approval Regime for the Purchase of Certain Shareholdings and Assets in the Energy Sector Breaches EC Law

Abstract

This paper, however, mainly concentrates on the ECJ judgment in the case C-207/07 and it explains the reasons why the veto power of the Spanish Energy Regulator (NEC) violated EC law. The article shows that the judgment is consistent with the EC case law on the application of the principles of freedom of establishment and of free movement of capitals to national restrictive measures giving states or public entities exclusive and/or special rights. Not only the ECJ embraces quite a wide perception of national measures infringing the free movement of capitals, but it also narrowly construes the conditions in which such restrictive national measures can be justified under EC law. A short look at the ECJ judgement in the case C-196/07 illustrates that also a specific decision taken by the NEC in the exercise of its veto power infringed EC law. More specifically, it breached the principle of ‘one stop shop,’ according to which the Commission has exclusive jurisdiction over review of concentrations with an EC dimension.