The regulator has refused request of Executive and maintains authorization granted on October 9, 2017, to OPA made by Atlanticia because it considers that it meets all requirements in regulation on public offers of acquisition. The CNMV understands that this regulation does not envisage such prior authorisations concerning indirect transmission of certain assets or contracts which Abertis Group owns. Promotion and industry understood that both toll motorway concessions and HISPASAT satellite company are strategic assets and refore should be authorized by executive.
The CNMV considers that authorisations required by Government are not administrative authorisations of supervisory bodies but mere authorisations or consents in concessional-contractual field.
The regulator recalls that requirement of prior authorisations under terms provided for by Takeovers Decree "constitutes an exception to principle of free transmissibility of shares of listed companies", and adds that "both this and, in general, Principle of freedom of movement of capitals oblige to be restrictive in terms of scope of precept ".
In any case, CNMV expresses its "respect for competence of ministries", and Trusts that " OPA process will be able to move forward normally," concludes regulator.Judicial route
If ministries of Fomentation and energy do not agree with this decision and wish to paralyze takeover of Atlanticia, y must put a contentious-administrative appeal against resolution of CNMV, as it would run fight for Abertis. The period of acceptance of OPA of Atlanticia is now interrupted pending that competing offer of Hochtief, a German subsidiary of ACS, is authorized by stock Exchange supervisor.
In this regard, two ministries said yesterday that y will study report submitted by CNMV before giving an answer. However, it seems difficult to go to court, especially when Atlanticia rectified its initial position and at end of December requested permission, according to sources close to operation.
Atlanticia considers that after ordering authorizations required by Government, re is no legal basis for executive to resort to courts decision of CNMVde to maintain its position. In addition, y understand that since Fomento has already granted its approval regarding motorways to Hochtief (which still does not have approval of CNMV), re is no reason not to give it to Atlanticia. However, energy opinion on Hispasat was lacking, same sources indicated. "The critical authorisations-both of Altantia and Hotchtief-will arrive in early February, and by mid-month or at end of process of accepting both takeover bids," y said.
The Italian group's offer was authorized by CNMV Council on 9 October. However, on December 7th, Fomento and Energía reported that both Atlanticia and Hochtief needed government's prior permission to purchase Abertis, as concessionaire exploits public-owned toll highways and has a stake Significant in Hispasat, a company that operates in a sector considered strategic. For this reason, y sent a request to CNMV to revoke authorisation granted to Atlanticia.
Two weeks later, Italian group decided to rectify request for permission from Spanish government. Hochtief, which had requested authorizations to executive from first moment, has already received approval of Council of Ministers in relation to concessions of highways of public ownership, although it lacks those related to Hispasat.
However, government's authorisations concerning Abertis ' participation in Hispasat and green light of CNMV are still lacking. ACS ' subsidiary has also requested permission from European Commission (EC), which will decide on operation before next 6 February. The Community executive had already authorized Atlanticia to purchase Abertis on 13 October.
Abertis ' bid began in mid-April, when Atlanticia expressed interest in exploring a possible corporate operation. After a month of speculation, Italian group announced on 15 May launch of a "friendly" takeover bid on 100% of Abertis at a price of 16.5 euros per share, which implies valuing concessionaire in 16,341,000,000. On October 18, ACS presented its OPA through Hochtief to 18.76 euros per share, price surpassed by 17% to one offered by Atlanticia and which implies valuing Abertis in 18.58 billion