Annual Report 2010 - Enel.com

veto to the adoption of resolutions liable to have a major
impact on the Company (by which is understood
resolutions to wind-up, transfer, merge, or split-up
the Company or to move its headquarters abroad or
change its corporate purpose, as well as those aimed
at abolishing or changing the content of the “special
powers”). Grounds for the veto must in any case be given
and the veto may be exercised only in cases in which
such resolutions are liable to cause concrete detriment
to vital national interests;
> appointment of a Director without the right to vote
(and of the related substitute in case he or she leaves
the office).
It should be noted that, on March 26, 2009, the Court of
Justice of the European Communities declared that, by
adopting the provisions stated in Article 1, paragraph
2, of the aforesaid Prime Minister’s Decree of June 10,
2004 containing the criteria for exercising the special
powers, Italy failed to meet its obligations under Articles
43 (freedom of establishment) and 56 (free circulation
of capital) of the institutive Treaty of the European
Community.
Thereafter, Decree of the President of the Council of
Ministers dated May 20, 2010 abrogated the provision
of the aforesaid Prime Minister’s Decree of June 10, 2004
censured by the Court of Justice of the European Communities,
which contained the circumstances in which
the special powers provided under letters a), b) and c)
could be effectively exercised. Article 1, paragraph 1, of
the Prime Minister’s Decree of June 10, 2004, according
to which the “special powers” may be exercised “only in
the event of relevant and unavoidable reasons of general
interest, with particular reference to public order, security,
health and defense, in the form and through means which
are suitable and proportional to safeguard such interests,
also through the possible provision of appropriate time
constraints, without prejudice to national and EU rules,
and among those, in first instance, the non-discrimination
principle“, remains applicable.
248 Enel Annual Report 2010
Corporate governance
Employee shareholdings:
mechanism for exercising voting
rights
The Unified Financial Act sets forth specific rules regarding
voting proxies in listed companies, which deviate – for
such companies – from the provisions set forth in the Civil
Code and which were significantly amended following
the implementation in Italy of Directive 2007/36/EC (relating
to the exercise of certain rights of the shareholders
of listed companies) by Legislative Decree 27 of January
27, 2010. The foregoing specific rules govern the solicitation
of proxies, which is defined as the request for proxies
addressed to more than two-hundred shareholders,
on specific voting proposals, or accompanied by recommendations,
declarations and other indications suitable
for the purpose of influencing the vote. However, the
Unified Financial Act clarifies that the request for proxies
accompanied by recommendations, declarations and
other indication suitable for the purpose of influencing
the vote, which is addressed by associations of shareholders
to their affiliates – including those associations which
put together employees who are shareholders – is not to
be considered as solicitation of proxies – and, thus, is not
subject to the relevant specific discipline – if such associations
comply with the specific requirements set forth by
the Unified Financial Act.
At the same time, the Unified Financial Act continues to
hope for the bylaws of listed companies to contain provisions
aimed at simplifying the exercise of voting right
through proxy by the employees who are shareholders,
thus fostering their participation to the decision of the
shareholders’ meetings.
In such respect, since 1999, Enel’s bylaws expressly provide
that, in order to simplify the collection of proxies by
the employees-shareholders of the Company and of its
subsidiaries, which are affiliated to associations of shareholders
which comply with the requirements prescribed
by applicable laws, facilities for communication and for
the collection of proxies shall be made available to such
associations, pursuant to the terms and modalities to be
agreed upon from time to time with their legal representatives.
In March 2008 the establishment of an employee-shareholders’
association called ADIGE - Associazione Azionisti
Dipendenti Gruppo Enel (Association of Employee-Shareholders
of Enel Group) which possesses the requirements