There Court of Justice of the European Union overturned the ECB’s decision of 2016 which denied the acquisition of a qualifying shareholding in Mediolanum Bank on the part of Silvio Berlusconi. In justifying its decision, the Court stressed that “the ECB could not legitimately oppose to the holding by Silvio Berlusconi of a qualified shareholding in the company Banca Mediolanum, a situation which resulted solely from the retention, by the interested party, of a qualified shareholding which he had acquired before the transposition of the provisions of Union law on which the ECB had relied”.
The freezing of the quota decided by Bankitalia
There Fininvest is an Italian holding company majority-owned by Silvio Berlusconi. This company held “qualified” shares in Mediolanuma financial company listed on the stock exchange that controlled 100% of the credit institution Banca Mediolanum.
In 2014, the Bank of Italy ordered the sale of the stake of Fininvest in Mediolanum exceeding a 9.99% share, within 30 monthsand the immediate suspension of voting rights exceeding this quota, justifying the measure with the fact that Silvio Berlusconi had been declared guilty of tax fraud and, therefore, lacked the requisite honorability necessary for holding such a qualified shareholding. The decision of the Bank of Italy was then annulled by the Council of State on March 3, 2016.
The ECB’s “controversial” decision
Meanwhile, in 2015, Mediolanum was incorporated by its daughter company Banca Mediolanum. Following this absorption and the ruling of the Italian Council of State, the Bank of Italy and the ECB considered that Silvio Berlusconi and Fininvest had “acquired” a stake qualified in the capital of Banca Mediolanum.
An operation from which, according to European legislation, derives the notification/assessment obligation of the national authority and the Frankfurt Institute, which can “oppose or not the acquisition of the qualified participation”. On this occasion, the ECB decided to oppose to the acquisition of a qualified shareholding by Silvio Berlusconi in Banca Mediolanum, because he did not satisfy the requirement of honorability.
Silvio Berlusconi and Fininvest appealed to obtain the annulment of this decision of the ECB, but the appeal was rejected by the Court, therefore this sentence was also contested.
The rejection by the European Court of Justice
Today’s decision by the European Court quashes the judgment of the Court, That “he distorted the facts of the dispute and committed an error of law in declaring that the appellants acquired a qualifying shareholding in Banca Mediolanum”, and the ECB’s “controversial” decisionwhich derives from the “misrepresentation of the scope of the Bank of Italy’s decision of 2014″, which “did not result in reducing Fininvest’s shareholding in Mediolanum, but only in suspending the voting rights attached to the shares subject to an obligation to sell”.
“Consequently – the Court underlines – it could not be considered that Silvio Berlusconi had acquired a qualified shareholding in 2016″, as Berlusconi had “only kept one share qualified that had been acquired well before” the transposition of the European regulations into the Italian legal system. However, since these regulations “have no retroactive effect”, it follows that the ECB could not have “legitimately opposed the (simple) holding of a qualified shareholding in Banca Mediolanum by Silvio Berlusconi”.
