Annual Report 2010 - Enel.com

Developments in the
inquiries of the Milan Public
Prosecutor’s Office
and the State Audit Court
into former senior managers
In February 2003, the Milan Public Prosecutor’s Office initiated
a criminal investigation of former top managers of
Enelpower and other individuals for alleged offences to
the detriment of Enelpower and payments made by contractors
to receive certain contracts. In January 2008, the
investigating magistrate allowed Enel SpA, Enelpower
SpA and Enel Produzione SpA to join the case as injured
parties. On April 27, 2009, the investigating magistrate
announced a plea bargain for a number of the defendants,
while the former directors and the executive of Enelpower
were committed for trial before the Court of Milan.
After the start of the trial in January 2010, on April
20, 2010 the judge ruled that the trial could not proceed
against the managers for the offences of corruption and
embezzlement as the statute of limitations had run out.
The trial is continuing against the managers for the offence
of criminal conspiracy. Enel, Enelpower and Enel
Produzione therefore remain involved in the proceeding
as injured parties for that offence.
Following extinguishment of the grounds for seeking
damages for pecuniary losses as a result of the Court of
Cassation’ s ruling no. 26806/09 of December 19, 2009
– restricted to substantiated pecuniary losses with State
Audit Court ruling no. 532/08 – and the extinguishment
of the charges of embezzlement and corruption due to
the statute of limitations, two civil suits were filed with
the courts of Monza and Udine seeking tortious damages
for the losses caused by the actions of Enel former
directors and senior managers being pursued through the
State Audit Court and the criminal court. In addition, Enel
Produzione and Enelpower have undertaken revocatory
actions against the former directors and senior managers,
voiding certain transfers of assets. Finally, following
the enforcement proceedings undertaken against the
former directors and managers, more than €450,000 have
been recovered. Enelpower is participating as an injured
party in the trial of the former directors and senior managers
for money laundering in the Swiss courts. In a decision
notified on July 2, 2010, the Federal Criminal Court
230 Enel Annual Report 2010 Consolidated financial statements
of Bellinzona ruled that since the injured parties were already
seeking the same damages in Italy, they could not
seek damages in Switzerland as well. Enel has appealed
that decision. Again in Switzerland, Enelpower obtained
a precautionary seizure order for amounts deposited on
the Swiss current accounts of the defendants in a total
amount of about 32 million Swiss francs (about €23 million).
BEG litigation
With its ruling of October 20, 2010, the Italian Court of
Cassation upheld the decision of the Rome Court of Appeal
of April 7, 2009, which rejected BEG’s appeal of the
unfavorable arbitration ruling. The ruling of the Court of
Cassation regarded the complaint filed by BEG SpA before
the Rome Arbitration Chamber in November 2000 against
Enelpower with regard to alleged breach of a collaboration
agreement governed by Italian law concerning the
construction of a hydroelectric power station in Albania.
BEG asked for damages from Enelpower of about €120
million.
The parties are still waiting for the scheduling of a hearing
before the Albanian Court of Cassation concerning
Enel’s appeal against the ruling of the Albanian Court of
Appeal, which on April 28, 2010 had upheld the decision
of the Court of Tirana awarding Albania BEG Ambient tortious
damages of about €25 million for 2004 as well as an
unspecified amount of other tortious damages for subsequent
years.
In addition, in a summons notified on September 28, 2010,
Enelpower and Enel filed suit against BEG SpA with the
Court of Rome asking the Court to ascertain the tortious liability
of BEG and order the latter to pay damages to Enelpower
(contractual and tortious) and to Enel (tortious) in
the amount that one or the other could be required to pay
to Albania BEG Ambient in the event of the enforcement
of the sentence issued by the Albanian courts. The first
hearing was held on January 18, 2011 and the judge has
reserved judgment on the request advanced by Enel and
Enelpower for time to reply to the allegations and objections
of the counterparty.