Tim, Consob’s appeal rejected. The Cassation: “Vivendi does not have de facto control”
The Court of Cassation joint sections declares “inadmissible” the appeal of the Consob and confirm that Vivendi it has no “de facto control” over Tim. This is what the ordinance says Cassation which dates to October 11 and was released today.
The Consob had appealed against the decision of the Council of State which had annulled the resolution of the Commission which qualified the shareholding relationship of Vivendi in Telecom Italia in terms of factual control. In turn, the Council of State had annulled the decision of the Tar which gave reason to the Consob.
The question arises from the fact that Vivendia French company listed on the Paris Stock Exchange, entered the share capital of Tim in June 2015, with the ownership of an initial stake of 6.66%, which then progressively increased to reach 23.925% of the share capital of Tim.
The Consob had qualified this participatory relationship of Vivendi in Telecom in terms of de facto corporate control following the observation that Vivendiin the meeting of 13 September 2017, was able to appoint the majority of the directors of Telecom.
“There was, therefore, no creation of non-existent rules – reads the ordinance of the Cassation – nor any interference in the sphere of discretion reserved to the administrative body since the Council of State limited itself to identifying, through a complex argumentative process, the legal reasons which required the application to the case of the legal principles concerning public consultation and procedural participation with this not going beyond the proprium of the judicial function”.
And still further on: “The reasoning referred to in the contested sentence starts from the assumption that an independent authority such as the Consob is vested with extensive powers, characterized by a rather high degree of discretion (whether administrative or technical) and that this requires the conferment of the same powers by means of regulatory provisions not formulated with an excessive degree of detail (because otherwise it would result in a paralysis of the functions and a nullification of the effectiveness and efficacy of the same)”.
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