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Businesses fear that the “counter” protective shield encourages government intervention in strategic sectors


Government You will have until December 31, 2024 the last word In any corporate operation launched on a Spanish company considered strategic by a non-European company or by a company located in the European Union but whose owners have their operations centered in a country outside this economic zone. The so-called “anti-opas shield”, which regulates the action of the Government of Spain in a kind of “golden measure” to allow or not to finally carry out any operation to control a “national hero” and which expired the following December 31, will be extended for another two years, As government sources confirmed to ABC on Monday after the information was leaked to Cinco Días and El País newspapers.

The extension will be implemented within the comprehensive package of measures that the Executive Authority is finalizing these days, which will lead to a full or partial extension of the relief measures adopted in recent months to mitigate the impact of high energy prices and inflation. On homes and businesses, they will be linked to this exceptional situation.

Not only will the government extend the shield currently in place, but it will go one step further in its control over the corporate movements of local business giants. If until now you had the possibility of blocking operations to take control of a stake of more than 10% in Spanish companies which, in your opinion, could endanger national security or the normal functioning of a particular market, from now on you can also veto Those that propose separating certain assets or business units which the executive branch considers strategic.

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Sources from the government’s economic zone explained that after two years of operating this device, “the same thing was detected It does not provide sufficient legal certainty As to whether the control of foreign investments applies only to operations carried out in relation to Spanish companies, as expressly provided by law, or whether it is extendable to those cases in which they are subject to community control.

In the face of this supposed legal ambiguity, the executive branch decided to directly reform the Law on the Legal Regime for Capital Movements and Economic Transactions Abroad of 2003, which was used to activate this prior control over foreign investments, to extend it to investment operations. In which assets or branches of activity are acquired without the form of the company “in order to maintain the integrity of investment control and provide the necessary legal guarantees to investors,” which they also consider urgent.

The so-called “Antiopas shield” It was promptly activated in March 2020 To protect large Spanish companies from the potential appetite of large foreign investors in a context in which the pandemic has sunk the market capitalization of the main domestic companies and make them accessible to investors. The maneuver was carried out with the consent of Brussels, which, in the context of increasing protectionism in large global economic regions, chose to prioritize the protection of European companies over the principle of free movement of capital that governs the European Union.

Months later, the government extended it to companies that are resident in the EU but whose owners are from regions outside the single market to avoid maneuvers aimed at controlling European companies. The rule was extended twice as the government understood that exceptional circumstances persisted which advised maintaining this firewall against attacks by foreign investors, hostile or not.

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Fear of interference

The government says that the device has been operating for two and a half years Did not generate any distortion in foreign direct investment In Spain, something supported by official data on direct investment in the country.

However, business sources consulted warned that government interference had an impact on some specific operations, including the takeover bid by Australian fund IFM for Naturgy or Vivendi’s unsuccessful maneuver for Grupo Prisa.

“An antiopas shield can make sense if it is temporary, transparent and used in a timely and non-judgmental manner, but the most important thing is that it is not used as a tool to achieve greater government intervention in the economy through the back door,” he confirmed in remarks to ABC Vice. Chairman and Chairman of the Economic Committee of the Executive Director, Inigo Fernandez de Mesaexpressing fear, was retracted in private by half a dozen business sources consulted by this newspaper.

The concern is greater due to the lack of norm specification when it comes to determining which companies are strategic. The regulation specifies a list covering practically all 35 Ibex companies, but leaves the door open for action in other sectors when it is understood that they “may affect public safety, public order and public health”.

Fernández de Mesa warns that “foreign investment has played a fundamental role in the development of infrastructures in Spain and in the growth of our economy”. Spain is seen as an open and friendly country for foreign investment and it is essential to maintain this reputation.

Another source consulted intuition that the damage had already been done. He warns that there are shareholders who made investments with the idea of ​​obtaining liquidity at a certain moment, and that their liquidity expectations are now conditional due to government intervention. He warns that “it affects not only sales, but also capital increases and prior permission to sell assets or business units makes the tool more restrictive. It will pollute the entire capital market.”

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